Legal

Can a long-hours culture lead to discrimination?

6 Jun 2018 By Claire Brook

An expectation to work overtime can be problematic, regardless of whether coercion is involved. Claire Brook reports in light of a recent Court of Appeal ruling

In United First Partners Research v Carreras, Carreras was an analyst at United and worked long hours, typically from around 8am to around 11pm. Almost a year into his employment, Carreras was injured, which caused him to suffer symptoms such as dizziness, fatigue and headaches. As a result, he was no longer able to work such long hours.

Carreras only worked a maximum of eight hours per day following his return to work after the accident. He began to work longer hours again following repeated requests from United. Carreras resigned and pursued claims in the employment tribunal, which found there was an assumption and an expectation that he would be working late on numerous nights throughout the week. 

He brought a claim for unfair dismissal and disability discrimination in the employment tribunal, specifically alleging that United had failed to make reasonable adjustments. 

The tribunal considered whether there was a provision, criterion or practice (PCP) implemented by United that put Carreras, as a disabled person, at a substantial disadvantage in comparison with another employee who was not disabled. If so, his employer was under a duty to take reasonable steps to avoid the disadvantage. 

In this case, Carreras argued that the PCP was the requirement to work long hours, which put him at a disadvantage because of his disability affecting his ability to commit to these additional hours. 

The tribunal originally held that United had not imposed the PCP on Carreras, as it believed he had never been ‘required’ to work longer hours – this was merely an expectation. It stated that as Carreras had not been ‘forced’ or expressly ‘coerced’ into working late, he was not subject to any requirement and it was his free choice to do this. 

Carreras appealed to the Employment Appeal Tribunal, which disagreed with the tribunal and found the ‘expectation’ to work long hours was enough to constitute a PCP, which the Court of Appeal then agreed with. It found that the term ‘requirement’ does not need to involve coercion and, depending on the circumstances, it could be no more than a ‘strong form of request’. The repeated requests to work late amounted to pressure on Carreras, and by the time of his resignation he was being asked ‘when’ he would be working late, not ‘if’. 

Tips for employers

Employers need to be aware that they can inadvertently create a ‘requirement’ to work additional hours, even if this is not expressly communicated as such. When determining if there is a requirement to work long hours, in addition to the agreement between the employer and the employee, the court will look at the way in which requests to work additional hours are communicated to an employee, the consequences the employee will face if they do not work those extra hours, and the practices and policies (including custom and practice) that are in place. 

In relation to requiring employees to work longer hours, employers should consider:

  • whether working additional hours is a reasonable requirement of the role;
  • whether the contract provides the employer with the entitlement to request/require additional hours;
  • whether the employee has opted out of the maximum working week under the Working Time Regulations and, if not, whether these additional hours unlawfully take the employee over this maximum working week;
  • whether the employee has had the required daily and weekly breaks under the Working Time Regulations; 
  • if the employee has a disability or becomes disabled, whether any reasonable adjustments are required (including no longer requiring an employee to work additional hours); and
  • taking legal advice.

When determining whether overtime needs to be paid in relation to the additional hours worked, employers should ensure they have clearly set out the employee’s entitlement to overtime in their contracts. A clear overtime policy should be in place, setting out the procedure for claiming overtime and any pre-approval that needs to take place. Certain roles will not require overtime to be paid, subject to national minimum wage. 

Claire Brook is a partner in employment law at Aaron & Partners 

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