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How voluntary is voluntary overtime? – the disability discrimination risk

Back in June 2016, I wrote a piece on the Employment Appeal Tribunal’s decision in Carreras -v- UFPR concerning the extent to which an employer’s expectations can amount to a provision, criterion or practice (PCP) for disability discrimination purposes (specifically, as a trigger for the obligation to make reasonable adjustments). That post is here

The case revolved around whether financial services business UFPR had failed to make adjustments in the hours worked by Mr Carreras in light of debilitating injuries he had suffered in a cycling accident. In the end, the EAT concluded that even though there was no evidence of compulsion to work long hours and even though there was substantial self-interest on Carreras’ part in choosing to do so, the employer’s assumption that he would work those hours did indeed amount to a PCP. I took the view that this seemed a little harsh because that assumption or expectation had arisen entirely from Carreras working similar hours without complaint for a number of months previously. It was arguably therefore an expectation or assumption in the sense of “I expect/assume that the sun will come up tomorrow” – borne of prior experience rather than my having any real say in the matter.

However, in a sharp poke in the eye of any aspirations I might once have had to high judicial office, the Court of Appeal has last month upheld that EAT decision. It stressed that “provision, criterion or practice” must be read widely. A pattern of behaviour which creates an expectation or assumption may be enough to constitute at least a “practice”, even if not a provision or criterion, and quite without the need for any degree of coercion to enforce it. That said, the employee cannot create a PCP out of nothing – s20 Equality Act makes it clear that it must belong to the employer. In other words, there must be something which the employer does to create it above and beyond a passive acceptance of the employee’s own choices.

Here UFPR made it clear on Carreras’ return after his accident that he could (and he did) work short hours and that he need not stay late if he didn’t think he was up to it. All good so far, but as he gradually and uncomplainingly increased his hours over the following 18 months, UFPR inevitably began to take this for granted. It began to assume (by giving him work to do) that he would keep doing those hours. His allegations that he had been subject to “bullying, browbeating and threats of redundancy” if he did not do so were not accepted by the Tribunal. However, the fact remained that UFPR did not renew its initial assurances that he need not work longer than he felt fit for (though nor did it withdraw them). Its communications with him about evening work shifted slowly from whether to when he would be doing it that week. This was found to be enough.

Lessons for Employers

  • All this would probably have been averted if UFPR had had an occasional check-in with Carreras about how his recovery was going. It could have reiterated its messages to him about the voluntary nature of any extended working hours. That would have made it much harder for Carreras to establish that those hours were UFPR’s PCP rather than a discipline he imposed on himself to help protect his own bonus and job security. Ideally UFPR would have followed up that chat with something in writing to the same effect.
  • That said, it would be necessary for the employer to tread a very precarious line between making long hours voluntary, no, really, on the one hand and not giving him the opportunity to work them on the other. If UFPR had expressly declined to make available to Carreras the type or volume of work he felt was needed to allow him to shine at bonus or redundancy selection time, it is not hard to foresee what might follow – a claim that it had made assumptions about limits on his capacity even though he had been working without problem or complaint, and therefore that it was guilty of direct disability discrimination against him.
  • Nothing in this case requires an employer to offer guarantees about bonus or job security to disabled staff which it does not make to others. It would be naïve to think that some element of fear on both counts is irrelevant to how hard people work, especially in financial services (indeed, that is what drives the whole system).   If that by itself constitutes a PCP imposed by the employer, which was hinted by the Court of Appeal, it would surely not be a reasonable adjustment to remove it.
  • It really takes very little to establish a PCP, and certainly nothing deliberate on the employer’s part. This decision suggests that in practice the opposite may be the case, i.e. that the employer may need to take conscious steps in its handling of disabled employees not to allow a PCP to develop.
© Copyright 2018 Squire Patton Boggs (US) LLP


About this Author

David Whincup, Employment Attorney, Squires Patton Boggs Law Firm

Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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