Opinion

Employer expectations - when do they amount to indirect discrimination?

3rd April 2018

Indirect discrimination is where an employer may have policies in place which are not intended to treat any of their employees less favourably, but which have the effect of disadvantaging people with a protected characteristic.

Indirect discrimination is described in section 19 of the Equality Act 2010 where:

  • A applies to B a provision, criterion or practice (PCP)
  • B has a protected characteristic
  • A also applies (or would apply) that PCP to person(s) who do not share B’s protected characteristic
  • the PCP puts or would put persons with whom B shares the protected characteristic at a particular disadvantage compared to others
  • the PCP puts or would put B to that disadvantage
  • A cannot show the PCP to be proportionate means of achieving a legitimate aim.

The Facts

Mr Carreras was employed as an analyst for United First Partnership Research from October 2011 to February 2014. In July 2012 Mr Carreras was involved in a motorbike accident. Prior to the incident Mr Carreras used to work 12-14 hours a day. However due to the incident he suffered from fatigue and was no longer able to work those long hours.

From October 2013, his employer asked him to work later into the evenings and Mr Carreras agreed to do so. These requests eventually amounted to a presumption that he would work these later hours. As a result of this presumption, Mr Carreras felt that he might be made redundant if he did not work these hours.

On 14 February 2014 Mr Carreras sent an email to Mr Mardel, an owner of the business, stating that he did not wish to work the later hours due to tiredness. Mr Mardel spoke to Mr Carreras in person the following day and said that he could leave if he did not like it. Mr Mardel also accused Mr Carreras of criticising colleagues.

Later that day Mr Carreras informed the HR team that he was resigning due to Mr Mardel’s abusive behaviour and packed up his belongings. Mr Carreras was asked to put his resignation in writing which he did by way of email. United then wrote to Mr Carreras reminding him of his post-termination obligations to which Mr Carreras responded with an explanation of his reasons for resigning.

As well as the issue regarding working later hours, there had also been issues which Mr Carreras claimed amounted to constructive dismissal.

A month after he resigned Mr Carreras’ wife secured a job in America and they both moved there. Mr Carreras maintained that he in fact wanted to stay in the UK until his personal injury claim had been finalised.

Mr Carreras brought a claim in the Employment Tribunal for unfair constructive dismissal and disability discrimination. The disability discrimination claim was brought on the fact that United had failed to make reasonable adjustments in relation to the longer work hours.

The ET accepted that Mr Carreras was disabled for the purposes of the Equality Act 2010, but found that United had not failed to make reasonable adjustments. The reason for their decision was because they had only asked Mr Carreras to work longer hours but had not requested that he did so.

The ET also found that with regards to the constructive dismissal claim, although United’s behaviour may have amounted to that which could have caused a constructive dismissal claim, it was not the reason that Mr Carreras had resigned. The ET gave weight to the fact that Mr Carreras had moved to America, and that the only reason he provided reasons for his resignation was because he was requested to by United and further, that he may have stayed if asked to. Mr Carreras was therefore unsuccessful in his claim and appealed to the EAT.

 

The Decision

The EAT allowed the appeal and held that the ET used too narrow an approach to the PCP. Mr Carreras had claimed that working longer hours was a requirement, and the ET therefore looked at the word ‘requirement’ in the narrowest sense. The EAT found that whilst United had expected or assumed that Mr Carreras would work late, it was not a requirement as Mr Carreras had claimed.

The EAT looked at the degree of compulsion to work late rather than the reality. The EHRC’s Code of Practice also makes it clear that a PCP should be construed widely. The EAT held that the reality of the situation was that Mr Carreras felt obliged to work later and his employer had requested that he do so and then expected him to do so which amounted to a PCP.

With regards to the constructive dismissal claim, the EAT held that the ET had failed to follow the approach as laid down in Nottinghamshire County Council c .Meikle [2004] in that a breach of contract claim only needs to constitute one of the reasons for resignation and not the only reason. The EAT also thought that the ET placed too much weight on the fact that Mr Carreras may have stayed if asked to and the fact that he had moved to America. These factors did not deter from the fact that there was a breach of contract and were the reason for Mr Carreras resigning.

 

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