An expectation that an employee work late can lead to a claim for disability discrimination, the Employment Appeal Tribunal has found.

The Claimant worked for an independent brokerage and research firm since 2011. He had opted out of the 48-hour working week, working from 8am to as late as 11pm until he was involved in a serious car accident in July 2012. As a result of the accident he began suffering from dizziness, fatigue, headaches and difficulty concentrating. These symptoms became more severe in the evenings if he worked late and the Respondent was aware this.

Working late hours was expected and necessary as the firm dealt with US markets affected by time zone difference. The Claimant began working later hours but complained to the Respondent that he was forced to work “unsuitable hours”. The Respondent had not requested or been provided with any medical records, however he had left the Claimant to work late only when he thought he was able to. In fact, in October 2013, the Claimant began requesting to work until 9:00 pm. As his 9:00 pm shifts became more regular, the Respondent began making requests that he stay and work until that time. Later these requests turned into an assumption that the Claimant would work late at least one or two nights a week.

In February 2014, the Claimant complained in a formal email about working the long hours he worked. During a heated discussion with the owner he was told that he could leave if he didn’t like the company. No attempts were made to mend the working relationship and the Claimant resigned because he alleged, among other reasons, the Respondent’s behaviour was abusive, unacceptable and intimidating.

The Employment Tribunal was satisfied that the Claimant was a disabled person within the meaning of the Equality Act and that the Respondent was aware of that, however it dismissed the claims of disability discrimination and constructive unfair dismissal because the Claimant had not been forced to work late. An expectation that he would work late was not a provision, criterion or practice (PCP) which required him to do so.

The EAT held that the ET had taken too narrow of an approach. It concluded that a “requirement” can come under “practice”. Although a simple request cannot be a PCP, the Respondents had gone beyond a request – there was an expectation and an assumption which put him at a disadvantage.

Education Business Partner David Carey says of this case: “This case creates some issues for schools who operate a culture of working late or working long hours in order for teachers to fulfill the needs of the role. Education establishments should manage working hours carefully, particularly when someone returns after a period of sickness.”