Expectation or Assumption amounted to a PCP for disability
The claimant was an analyst at UFPR which was an independent brokerage and research firm. He suffered severe injuries in a road traffic accident, prior to which he had historically worked long hours. His ongoing symptoms of dizziness, fatigue, headaches and difficulties in concentrating and focusing constituted a disability. This meant that he found it difficult to work in the evenings. When he returned to work on an initial phased return of working fewer hours, once he was used to this, he started to work later on the odd evening. This progressed to requests by the employer for him to work late and then an assumption that he would. When he emailed the company to formally object to working late because of his symptoms, this led to a heated exchange between him and one of the owners, during which he was told that he could leave if he did not like it. He subsequently resigned and brought claims of disability discrimination for failure to make reasonable adjustments and constructive dismissal.
He relied on the PCP of being required to work late. The company argued that this had been voluntary for him after his accident and that he had only been requested, and not required, to do so. The Tribunal dismissed his reasonable adjustments claim on the basis that the expectation or assumption that he would work late was not the PCP which he had pleaded and that there was no requirement for him to work late, which was how he had put his case.
The EAT upheld his appeal against this decision, holding that the protective nature of the legislation meant that a liberal rather than a restrictively technical or narrow approach should be adopted when the matter of identifying the PCP was considered. The EHRC Code of Practice on employment states that the phase “provision, criterion, or practice” is to be widely construed. An expectation or assumption placed on an employee could be sufficient and the Tribunal had found that the company’s position had progressed from making requests of the claimant to work late, to an assumption that he would. The matter has been remitted back to the Tribunal to determine the nature and extent of the disadvantage suffered by the claimant and assess the adjustments which it would have been reasonable to expect the company to make.
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