Narrow PCP

When bringing a claim of failure to make a reasonable adjustment, workers have to show that their employer applied a provision, criterion or practice (PCP) which put them at a substantial disadvantage in comparison with someone who did not have a disability. In Carreras v United First Partners Research, the Court of Appeal held that tribunals should not take too narrow a view of the PCP identified by the claimant.

Basic facts

Mr Carreras, an analyst for a brokerage firm, regularly worked a 12 to 15-hour day. After a serious road accident in July 2012, he returned to work within a few weeks but worked no more than eight hours a day for the first six months. Although he then volunteered to start working longer hours, this turned into an assumption on the part of the company that he would work late one or two nights per week. He started to feel under pressure but did not complain because of concerns that he might be made redundant or his bonus might be affected.

Matters came to a head on 14 February 2014 when he wrote to his employer, formally objecting to working late in the evenings. This led to a heated exchange between him and one of the owners after which Mr Carreras resigned and claimed disability discrimination (failure to make reasonable adjustments), relying on a PCP that he had been required to work late. He also claimed constructive dismissal.

Tribunal and EAT decisions

The tribunal accepted that he was a disabled person and that the firm was aware of his disability. However, it rejected his discrimination claim on the basis that there was no “requirement” on him to work late, simply an expectation. As such, Mr Carreras was not forced, as in “coerced” to work late. With regard to his constructive dismissal claim, it agreed that there had been a fundamental breach of contract but that Mr Carreras had not resigned in response to that breach.

The EAT, however, held that the tribunal had adopted an unduly narrow approach to the question of whether Mr Carreras had been "required" to work evenings and that it should have found that the expectation that he would do so constituted a PCP. As for the constructive dismissal claim, the judge concluded that, on the facts, the only possible conclusion was that Mr Carreras had resigned in response to a fundamental breach of contract by the company (weekly LELR 478).

Decision of Court of Appeal

The Court of Appeal dismissed the company’s appeal, agreeing with the EAT that the tribunal’s approach was too narrow. Like the EAT, it held that the term "requirement" did not necessarily carry a connotation of "coercion" in the sense understood by the tribunal. Depending on the context, it could instead represent no more than a strong form of "request" to work evenings.

As for the claim of constructive dismissal, the Court agreed with the EAT that the tribunal’s reasoning was fundamentally flawed. Mr Carreras was entitled to terminate his contract by reason of his employer's conduct, the tribunal having found as a fact that the sequence of events culminating in the incident on 14 February amounted cumulatively to a fundamental breach of contract.