When you work late in the office, why? Because it will make the following day that bit less fraught? Because you do not want to be seen as a clock-watcher? Because you think it will help your bonus or job security? Because you believe it is the right thing to do for the good of the company? Or because you are actually required to do so?
As you fall drained through your front door at night, you could properly take the view that it doesn’t matter, but in some circumstances that might not be right – the precise degree of compulsion may be very important, for example, if you are disabled and do not (or no longer) feel that you can work those late hours.
In Carreras -v- United First Partners Research, the Employment Appeal Tribunal considered earlier this month whether late night working could be a “provision, criterion or practice” for the purposes of triggering the employer’s duty to make reasonable adjustments under s20 Equality Act 2010.
In brief, Carreras was a successful analyst for brokerage and research firm UFPR who was well used to working 12 hours days. In 2012 he suffered a cycling accident which it was agreed left him statutorily disabled. Specifically, he experienced dizziness, fatigue and headaches, had difficulties concentrating and focusing and found it hard to work in the evenings, and UFPR was found to know this. It was therefore established that Carreras had the disability and UFPR had the knowledge, so all that was left was the need for a PCP – if there was one, the duty to make reasonable adjustments applied, and if there was not, it didn’t.
Initially on his return to work Carreras did a relatively limited 8 hour day, but that began to creep up again, sometimes of his own volition and sometimes at the request of his employer. His regular and uncomplaining compliance with those requests led to an assumption that he would work one or two late nights per week, and the employer began to ask him which nights he would be working late that week, rather than whether he was prepared to do any at all.
On Valentine’s Day 2014 (just a coincidence, I am assured) Carreras formally emailed his manager objecting to the late working because of his post-accident tiredness. The boss blew a gasket, shouting at Carreras in the open office that if did not like it, he could leave. Carreras quit later that day, ultimately winning his constructive dismissal claim as a result of the manager’s conduct.
However, he also brought a claim for failure to make reasonable adjustments under s.20, requiring him to show the application to him by UFPR of a provision, criterion or practice. Could that include the late night working?
The issue revolved around the extent to which that late working was a requirement, and how far it was purely voluntary. Carreras said that if he did not work those hours he feared that he might be made redundant or lose his bonus (approximately £100,000 per annum in the years immediately before and after his accident, so well worth looking after). The Employment Tribunal found that although there were indeed such commercial or political factors which may have led Carreras to decide that it was in his own interest – financially or in terms of career progression – to work late, there was no actual compulsion of him to do so. There was no suggestion that prior to 14 February 2014 Carreras had ever been told that if he refused to do the late nights he would lose his job or his bonus. UFPR agreed that sometimes Carreras had been asked to work late, but that he could always just have said no without adverse consequences. As his hours had crept up post-accident it had become an assumption that he would work late, said UFPR (not an unreasonable one, you might think, given that that was his common practice), but it had never become a requirement.
In the Tribunal Carreras failed because he had pleaded that he had been “required” to work long hours and the evidence simply did not support this. However, in the Employment Appeal Tribunal, the Judge took the view that while “requirement” might normally be taken to imply some element of compulsion, an expectation or assumption placed upon an employee by the employer might well suffice.
As a result, even though it was based wholly on his own prior willingness to do so, the employer’s expectation that Carreras would work late did amount to a provision, criterion or practice, allowing him to go forward with consideration of what reasonable adjustments should have been made.
Lessons for Employers
It is to be presumed that the main adjustment which UFPR should have made is to make it clearer to Carreras that he need not work long hours. That seems a little unfair in circumstances where UFPR had never put Carreras under threat if he did not do the hours, he had done them out of genuine (though as the Tribunal found, misplaced) self-interest in terms of bonus and job security, and UFPR had only assumed that he would do the hours going forward because he had done them without complaint in the past.
If that is right, then this represents a step on from the previous law in terms of the extent of the obligation imposed on the employer to clarify its expectations of disabled staff. Previous authority focused on employees whose judgement about what was necessary might have been impaired by a mental health complaint, but this seems to extend that to physical disabilities also.
One interesting issue not discussed in this case is whether it would have made any difference had Carreras’s bonus actually been under threat – in circumstances where much of one’s bonus expectation in the financial services sector derives from long hours of slog, it will surely be hard to persuade any employee, however express you make the point, that he can do less work without suffering financially as a result. It seems that here Carreras was perhaps not willing to accept the probability that doing less work for the sake of how own health might result in a smaller bonus but it does seem a little unfair that this should become his employer’s fault.