shallow focus of clear hourglassI recently spoke to an old friend about how things were at work, she explained they were not good. A new manager had taken up post and would periodically require her to work long hours at short notice (literally needing to work through the night to make a deadline). She did so but when she explained that she could not do so again, at least not with adequate notice she found she was subjected to poor performance measures and strong intimations that she would be best ‘advised’ to seek alternative employment in the near future.

When an employer applies a provision, criterion or practice (PCP) which places an employee at a substantial disadvantage compared to those without a disability the duty to make reasonable adjustments is engaged. This can include a requirement to work substantial or excessive hours. An employer must in such a circumstance consider what reasonable adjustments that are reasonable in all the circumstances.

Two recent cases explore this issue and both are beneficial to workers (if they happen to be disabled, that is).

Carreras v United First Partners Research

In Carreras a disabled worker who worked 12-15 hours a day had an accident and was absent for a few weeks. He returned bit only worked for at most 8 hours a day. After a few months he volunteered to do extra hours and before long he was regularly scheduled to do late nights two days a week and on a weekly basis he was specifically requested by the employer to do so. Mr Carreras then complained of this regular requirement which made him feel unwell, for reasons partially unrelated to this complaint following this an argument with the business owner took place and Mr Carreras resigned.

In the Employment Tribunal’s decision the claim of a failure to make adjustments was rejected because although it was accepted he was disabled and that the employer was aware of the disability the was no PCP to work long hours. The tribunal found that an expectation did not amount to an obligation, and it was only if there was an obligation to work these hours that this would constitute a PCP. On appeal the EAT, and later the Court of Appeal, rejected this finding.  In giving judgement Lord Justice Underhill (para 31) explained that:

In my view the term “requirement” does not necessarily carry a connotation of “coercion” in the sense understood by the Tribunal. On the contrary, it may, depending on the context, represent no more than a strong form of “request” … The allegation there 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. Mr Rahman in his oral submissions accepted that such a state of affairs could in principle constitute a PCP – more particularly, a “practice” – within the meaning of section 20 (3) of the 2010 Act, but he said that that did not amount to a “requirement” and was not the case which the Respondent had to meet. For the reasons which I have given, I do not agree: the equiparation of “requirement” with “coercion” is a gloss on what was pleaded.

In short, even without a formal requirement to work longer hours the expectation and/or pressure to do so may amount to a PCP of an employer which engages – if other requirements -are met – the duty to make adjustments.

Home Office v Kuranchie

Kuranchie concerned another failure to make adjustments. Ms Kuranchie was disabled by reason of dyslexia and other impairments and the employer had knowledge of this. At the employee’s request a number of adjustments were made, such as the provision the specialist equipment at consolidating her full working week into four instead of five days.

At tribunal , despite not having requested this directly from the employer previously, the claimant put forward the argument that by reason of disability she worked at a slower pace then would have been the case but for her disability. This meant that she was required to perform the same amount of work as her non-disabled peers but that the working hours required to perform this work was greater, meaning Ms Kuranchie had to work longer hours than her peers. Whereas in Carreras it was the expectation of working longer hours that was the PCP in Kuranchie the PCP Employment Tribunal found that:

The Respondent had a provision or practice of giving the Claimant the same volume of work as her colleagues.  This placed her at a substantial disadvantage compared to her non-disabled colleagues because it took her longer to complete the work due to her disabilities.  As a result, she worked longer hours than her colleagues in order to complete the work.  The Respondent should have made the reasonable adjustment of reducing her workload in order to avoid the disadvantage.

On appeal the judgement of the Tribunal was upheld and it is right that they did although it seems to me that the case could more easily framed as a discrimination arising from disability claim.

However, what is clear from both Carreras and Kuranchie is that where for reasons arising and related to disability a employee needs to work longer hours or, alternatively, when there is a general expectation to work long hours that places a disabled person at a substantial disadvantage (for example, they are more tired) then  this can provide a legitimate basis for a disability discrimination complaint.

And the non-disabled?

I consider the above rules to be sensible but at common law there is very little protection for workers. By way of example, consider the case of the junior doctor in Johnstone v Bloomsbury Health Authority [1992] QB 333. As a matter of contract the worker, a junior Doctor, was required to work a 40 hour week and, on top of that, overtime of up to a further 48 hours (so up to 88 hours a week in total). When faced with the contrast between the express term of contract (to work up to 88 hours work) and the implied term to take reasonable care for the safety of employees the court fund it very difficult to determine that the implied term persisted in the wake of the explicit term. This was resolved by what Hugh Collins called Brown Wilkinson’s “eloquent solution” (Employment Law, 2nd Ed., Oxford, 2010) in that the 48 hours overtime was discretionary and as such that discretion was impliedly qualified by the implied duty to take reasonable care for an employee’s wellbeing.. In short, the exercise of the discretion engaged the implied duty of care. However, as Collins notes, ” if the contract imposed an absolute obligation to work a further 48 hour’s overtime, there could be no breach of the implied term.” So, the more retrograde explicit term requiring excessive hours attracts little to no protection under the common law contract principles (Deakin, Labour Law suggests such a contract could be nullified on public policy grounds or under Unfair Contract legislation).

Of course, aside from common law a worker will – for the time being at least – be able to gain some protection from working time regulations, notably the maximum number of hours work and minimum rest breaks between shifts but for how long will there  such protection given the glee with which some Brexiteer’s have talked up EU ‘cutting red tape’ after March 219.