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The Trade Union Congress estimates that employees in the UK worked £32 billion worth of unpaid overtime hours in 2014. In November 2015, the Telegraph published the results of a poll which calculated that the average UK employee will give their employers 9,024 hours of unpaid overtime over their working life. Increasingly, technology is keeping employees linked to the workplace even after their normal shifts have ended.

The BBC published an article in June 2016 which claimed that 40% of people check their emails first thing in the morning when they wake up, and 40% check them as the last thing before they go to sleep. In France, the government has been so concerned by these trends that they are introducing an obligation on all employers with over 50 members of staff to draw up a charter of good conduct which indicates that emails should not be checked or answered out of work hours or at the weekend.

The reality is that most employees will find themselves working beyond their normal working hours at some point. This is especially true in service industries or in the field of professional services, where the work is focused around keeping customers and clients satisfied, which may involve staff having to remain after work or come in early to meet particular demands. While it may not be an express requirement, the business culture may be such that employees feel compelled to stay late so that their manager can see that they are ‘putting in the hours’.

It was such a work culture that was put to the test in the recent T case of Carreras v United First Partner Research. Mr Carreras was a successful analyst at an independent brokerage and research firm. He voluntarily put in very long hours to meet the demands of clients who lived in the US, and was by all accounts very successful at his job.

However, following a serious road traffic accident, Mr Carreras experienced dizziness, fatigue and headaches, had difficulty concentrating and focusing, and found it challenging to work in the evenings. Although in the initial period following his accident he did not work beyond his normal hours, he began gradually working for longer hours. His employer then began requesting that he stay later, up to 9pm, which then progressed to an assumption that he would be working late a number of nights during the week, rather than asking whether he would be prepared to work the hours.

Mr Carreras’ claim related to constructive dismissal and disability discrimination arising from an alleged failure to make reasonable adjustments. He argued that his employer’s requirement to work late amounted to a “provision, criterion or practice” (known as a “PCP”) which put him at a substantial disadvantage in comparison with non-disabled employee, and that his employer should accordingly have made reasonable adjustments for him.

The employer’s argument was that there was no requirement for Mr Carreras to work longer hours and that instead he worked these by choice. The Tribunal found that matters had progressed from open requests to work late to an assumption that he would do so. The Tribunal recognised that there might be factors that “led the Claimant to decide that it was in his interests financially/in terms of his career prospects for him to work late”. However because the Tribunal interpreted his case as relying on a clear “requirement” it found that his claim could not succeed. The decision was however overturned by the Employment Appeal Tribunal which decided that the word ‘requirement’ had been interpreted too narrowly by the Tribunal. The employer clearly assumed and expected that Mr Carreras would work late at least some nights a week, and this in turn had the effect of creating an obligation on him. It took into account that Mr Carreras was concerned about whether he would receive a bonus if he did not work late, and whether he might be selected for redundancy. He was also apprehensive that his career progression may be affected if he did not work the extra hours. In the circumstances he had established a relevant PCP which could potentially trigger an obligation to make reasonable adjustments.

The EAT went on to find that it was clear that Mr Carreras had been put at a particular disadvantage by PCP and sent the case back to the Tribunal to consider the nature and extent of this and the adjustment the employer might have been obliged to take. The outcome clearly puts the employer on the back foot in terms of justifying its work place culture.

Practical Implications?

While the wording of the Equality Act 2010 and the guidance contained in the EHRC Code has long indicated that there is no need to establish an actual “requirement” the case clearly illustrates that an employee does not have to be explicitly forced to do something for it to be a ”provision, criterion or practice”. An expectation can be sufficient to trigger obligations on the employer. The EAT picked up on the Tribunal’s reference to “commercial and political factors” which can make employees feel obliged to behave in a particular way even if disadvantageous to their health.

It is not clear if the position might be different in a situation where, unlike Mr Carreras’s case, there was never even an express request to work late but the case should give Employers pause for thought about the nature of the business culture they preside over including the subtle impact of tacit compulsitors in order to better assess the impact this may have on disabled employees and the risks that accordingly emerge.

Annika Neukirch

Chambers UK 2018

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