Under the Equality Act 2010, an employee's claim of reasonable adjustments can only succeed if they satisfy a prescriptive legal test. The claimant must show that there was a ‘provision, criterion or practice’ (known as a ‘PCP’) which placed them at a substantial disadvantage in comparison with those who are not disabled. If such a PCP applies, then the employer must take such steps as it is reasonable to take to avoid the disadvantage.
So, the first step for an employer is to consider whether a PCP applies to an employee which would trigger the (often onerous) duty to make reasonable adjustments.
An example of an obvious PCP would be a policy that certain car parking spaces are only offered to senior managers. A junior employee with a mobility impairment would be placed at a substantial disadvantage by this policy if they need to park very close to the office. However, other situations are less clear cut and not as easy to identify, such as in the case of Carreras v United First Partnership Research (“UFPR”).
Mr Carreras was employed as an analyst for a brokerage firm and had sustained serious injuries following a bike accident, resulting in a period of sick leave. After he returned to work he continued to suffer from a number of symptoms linked to his injuries, of which UFPR was aware, including headaches, fatigue and difficulty concentrating.
Before the accident, Mr Carreras usually worked from 9am to 9pm. During the first six months following his return to work, he worked eight hours a day. However, his hours gradually increased and he was asked by UFPR to work late on a number of occasions. This led to UPFR expecting and assuming that Mr Carreras would work late on a regular basis and Mr Carreras felt that he might be made redundant or lose his bonus if he did not do so.
Several months later, after a number of incidents affecting the relationship between Mr Carreras and UFPR, Mr Carreras raised concerns about working late with one of UFPR’s owners. However, during this discussion (which apparently became heated), Mr Carreras was allegedly told that if he did not like the way he had been treated, he could leave. Mr Carreras subsequently resigned.
Mr Carreras brought claims in the Employment Tribunal for constructive unfair dismissal and disability discrimination on the basis that UFPR had failed to make reasonable adjustments.
The Tribunal initially took the view that Mr Carreras had only succeeded in demonstrating that there was an expectation or assumption to work late, and not a requirement to do so, and his claim of disability discrimination therefore failed.
On appeal, the EAT (Employment Appeals Tribunal) disagreed with the Tribunal and found that it had been too narrow in its approach in construing the word “requirement” and emphasised that a PCP should be construed widely.
This case demonstrates that the concept of a ‘PCP’, which is integral to a duty to make reasonable adjustments, is broad and can encompass a number of different situations. Employers should, therefore, always be alive to any circumstances which could present issues for disabled employees and consider making adjustments to alleviate the difficulty. Otherwise, the employer may fall foul of the Equality Act. And employers should remember that, once they are on notice of a disability or a long term health condition, there is no onus on the disabled person to suggest adjustments – the duty to consider making reasonable adjustments falls on the employer so they need to take proactive steps to comply with the law.
