In a recently reported case involving a brokerage firm (Carreras
v United First Partnership Research UKEAT/0266/15) the Employment
Appeals Tribunal ("EAT") has opened the way to
discrimination claims based on expectations in the workplace.
An employer will be guilty of indirect discrimination if it has
in place a "provision, criterion or practice"
("PCP") which places an employee at a substantial
disadvantage compared to non-disabled employees, and cannot be
Facts of the case
In this case, the business did not have an express requirement
for employees to work long hours but first asked Mr Carreras to
work longer hours and then expected him to work late at least 2
days a week. The result was that Mr Carreras felt obliged to work
late. Mr Carreras had recently returned from a serious cycling
accident and as a result of the ongoing effect of the accident, was
struggling to work the long hours he worked prior to the
The Employment Tribunal ("ET") found that there was no
requirement to work long hours and so there was no PCP. The EAT
disagreed: the expectation that he should work long hours was
enough to form a PCP. The ET itself had observed that "he
would have considered there were commercial and political reasons
why he should work late".
This case opens the gateway for arguments that working cultures
that actively encourage and reward those that work long hours could
be discriminatory. This argument could be extended to other types
of discrimination, sex discrimination for example.
In this case the expectation to work long hours was made expressly
clear by the employer, but in the future we can see the ET
sympathising with employees where it is not so obvious.
Things to consider
Consider whether your business
Promote or reward those who
work long hours;
Set targets and a workload
that can only be met through a work regime - this may be more
difficult for those with physical or mental conditions;
Expect employees read and
reply to emails 24/7 – this could be more difficult for those
with mental conditions such as depression and anxiety to comply
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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