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Can an expectation or assumption amount to a Provision, Criterion or Practice (PCP)?

In Carreras v United First Partners Research (UFPR), the Employment Appeal Tribunal (EAT) has overturned an Employment Tribunal’s decision that an expectation or assumption that an employee would work late was not a provision, criterion or practice which may give rise to the reasonable adjustments duty. The Tribunal had held that Mr Carreras had not properly pleaded the fact that he was subjected to a disadvantage by being expected to work late by stating that it was a ‘requirement’. Mr Carreras argued, on appeal, that he was not referring to a ‘requirement’ in a statutory sense but to demonstrate the PCP.

Mr Carreras was employed by UFPR as an analyst. Following a road traffic accident while riding his bike, he suffered severe injuries leaving him with continuing symptoms such as headaches, dizziness, fatigue and reduced concentration. His symptoms constituted a disability under the Equality Act 2010. After an initial period of reduced hours, UFPR began to expect that he would work one or two late nights per week asking him which late nights he would work rather than whether he would. Mr Carreras objected, by email, to working late nights due to his fatigue. He was told that if he didn’t like it he could leave. Mr Carreras resigned and issued a claim in the Tribunal for constructive dismissal and a failure to make reasonable adjustments.

The EAT considered that the Tribunal’s approach had been too narrow and was inconsistent with the wording in the EHRC’s Code of Practice on Employment which provides for a wide construction of the phrase ‘provision, criterion or practice’. It upheld his appeal. There had been an expectation that he would work late nights and that amounted to a PCP. The case was remitted to the same Tribunal to determine the extent and nature of any disadvantage suffered by Mr Carreras in being expected to work late. The Tribunal will also consider whether any adjustments would have been reasonable.

This case demonstrates the width of the reasonable adjustments duty and the fact that a mere expectation or assumption can amount to a PCP. Employers may wish to consult with employees, particularly those with health conditions to see if there is any barrier to work and if this can be circumvented.

This article is not a substitute for legal advice on specific facts and circumstances. It is designed as a free update on the law at the time of publishing. Knight Polson Limited trading as QualitySolicitors Knight Polson accepts no responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

If you would like to discuss any issues arising out of this case report, please do not hesitate to contact us. This is not a substitute for legal advice which should be sought on specific circumstances.

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