Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
We have all been there. Late in the evening, on the phone to your partner or family, trying to explain why you must stay late at work despite no one actually asking you to do so. It can be frustrating and tiresome, but for many it is a fact of life.
Now the recent Court of Appeal decision in United First Partners Research v. Carreras has confirmed that a workplace culture of long hours can amount to a "provision, criterion or practice" (PCP) for the purposes of the United Kingdom’s Equality Act 2010. The significance of this designation is that employers are under an obligation to make reasonable adjustments where a particular PCP puts disabled employees at a substantial disadvantage.
In this case, Mr. Carreras was a successful analyst who was involved in a cycling accident that caused physical and emotional injuries. This condition made it hard for him to work long hours safely. Mr. Carreras argued that there was a culture of long working hours at the company, which meant he was regularly required to stay late despite his health issues. The main question was whether Mr. Carreras was "forced" to work late, or whether he chose to do so of his own free will. The key passage from the judgment is as follows:
[It] is not that the Claimant was explicitly ordered to work in the evenings, or subjected to other explicit pressures which had the effect of depriving him of any real choice; rather it is that it was made clear by a pattern of repeated requests that he was expected to do so, and that that created a pressure on him to agree.
The Court of Appeal found Mr. Carreras was "required" to stay late as the reality of the situation had to be appreciated.
What does this ruling mean for employers in the U.K.?
This decision is not itself particularly controversial; it informs the law on PCPs rather than changes it. However, there is now clear authority from the Court of Appeal (the second highest labour law court in the U.K.) that you don’t need to "require" an employee to work long hours for it to be established that employees are expected to.
Professional services firms may be particularly susceptible to disability discrimination claims where employees with disabilities such as stress or lower back pain may be adversely affected by long working hours.
Disability, for the purposes of equality legislation, can be interpreted particularly widely and includes visible and invisible impairments which the employer knows, or ought to have known, about.
What can employers do?
The reality is that long hours are part and parcel of working life, especially in high-paying jobs. Therefore, if you have employees based in the U.K., what can you do to try to reduce the risk of a disability claim? The statute provides for two possible defences to such a claim.
First, making reasonable adjustments for employees with disabilities will mitigate the risk of a claim. Where a PCP puts a disabled person at a substantial disadvantage, an employer will not be found liable if they have taken reasonable steps to avoid the disadvantage. For example, reasonable adjustment might mean the employer implements a strict "clock in, clock out" system for affected employees, channelling their work through a single line manager or scheduling regular catch-ups with HR to discuss and manage workload.
Objective justification is the other statutory defence. If accommodating the individual is not possible or practical, the requirement to work long hours will need to be objectively justified should an employee bring a disability discrimination claim. Employers should be aware that this is a high standard to meet. An employer will need to show that there is a legitimate aim (a real business need), that having employees work long hours is a proportionate means to achieve that aim, and that there are no less discriminatory means available. The courts have indicated that it is doubtful whether cost alone is a legitimate aim for these purposes.
What does this ruling mean more broadly?
Authority suggesting that long working hours can be a PCP may also affect other groups of employees who are protected by the Equality Act 2010, such as pregnant woman. Employers should not be surprised if various types of claimants attempt to pursue claims under similar theories in the future. In the meantime, lawyers will continue to work long into to the night to scrutinise the significance of this judgment.