In Carreras v United First Partners Research, Carreras was an analyst in a brokerage firm. He had worked long hours before suffering serious injuries in a cycling accident. C experienced dizziness, fatigue and headaches, had difficulties concentrating and focusing and found it difficult to work in the evenings. In the first six months after his return, C worked no more than 8 hours a day. This increased to 10 hours, with others covering later evening hours. C then progressed to working to 9.00 pm upon requests from the employer. This led to an assumption he would be working one or two later nights during the week with the employer asking him which nights he would be working late, rather than asking whether he was prepared to work any at all.

C sent an email, formally objecting to working late in the evenings because of his tiredness. There was a heated exchange between him and an owner of the business, Mr Mardel (M), during which M told C that if he did not like it he could leave. C told HR that M’s behaviour was abusive and unacceptable and he was resigning.

An employment tribunal rejected C’s claims of disability discrimination, i.e. a failure to make reasonable adjustments, and constructive dismissal. In respect of the reasonable adjustments claim, C relied on a provision, criterion or practice (“PCP”) of having been required to work late, which he argued placed him at a disadvantage. The tribunal, however, did not accept that C had been “forced” to work late. An expectation or assumption that C should work late was not a PCP. On the constructive dismissal case, the employer’s conduct amounted to a fundamental breach of contract, but the tribunal did not consider that was the reason for C’s resignation and related to other matters, largely occurring afterwards. 

The EAT upheld C’s appeal. In approaching the statutory definition of a PCP, the nature of the legislation meant a liberal, rather than an overly technical approach, should be adopted.  In the ‘real world’, whilst “requirement” might be taken to imply some element of compulsion, an expectation or assumption placed upon an employee could suffice and C’s case had been made out. This was particularly so as the tribunal had found C suffered a disadvantage, compared to a non-disabled people, as a result of the PCP of working later hours. 

As for the constructive dismissal, the question was not so much whether the breach of contact constituted the reason for the resignation as whether it was a reason for that resignation.  Whilst what C subsequently did might not be irrelevant, the evidence made it plain that something had occurred on the day he sent the email to which M had responded, which caused C to resign there and then.  The only permissible conclusion was that C had resigned – at least in part – in response to the employer’s repudiatory breach. 

As confirmed by the EAT, paragraph 6.10 of the EHRC Employment states that a PCP should be construed widely so as to include, for example, any formal or informal policies, rules, practices or arrangements. This case provides a useful example of how this applies in the real world of work where a regular expectation or an assumption that an employee would work late can be defined as a ‘requirement’.

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