We have a very high pressure environment and we often have to work long hours to meet deadlines and hit targets. One of our employees had an accident which has led to him suffering physical symptoms such as dizziness, headaches, fatigue and difficulty concentrating. He believes this constitutes a disability. After his accident he did just his 8 contractual hours a day but has increased this to 10 more recently, which was still not enough. We asked him to work later, which progressed to an assumption that he would do so, sometimes asking ‘when’ he was working late.
The employee claims that we have failed to make reasonable adjustments in relation to the requirement to work long hours. He is not alleging that he has been explicitly ordered to work in the evenings, or subjected to other explicit pressures, which had the effect of depriving him of any real choice; rather it was that it has been made clear by our repeated requests, that he was expected to do so, which in turn created pressure to agree.
You might argue that he is not disabled, but this is a risky strategy as it appears his health condition could become long term and it is already adversely impacting his day-to-day activities.
You would be seeking to maintain that there is no requirement to work long hours and therefore no provision, criterion or practice (PCP) which places the employee at a substantial disadvantage. He will argue that a workplace culture of long hours risks breaching the Equality Act 2010, as you are failing in your duty to make reasonable adjustments to his health issues.
An expectation that a worker will work late does not have to be presented as an instruction to cause a disadvantage. If the disabled employee can establish the existence of a long-hours culture, this may be enough to amount to a ‘practice’ under the Equality Act 2010. Normally such a PCP would have to be a written requirement, but it is possible that an unwritten ‘requirement’ could, depending on the context, be held to represent such a requirement.
In the real world, employers can and do put pressure on employees to conform, even if there is no written rule or direct management instruction; it does not have to be presented to the worker as an instruction. This does not mean that you cannot ask a disabled employee to work late. However, you should think carefully about the impact of repeated requests to work late on someone’s disability and whether it would be a reasonable adjustment for a disabled employee to work only their contractual hours.
Context will be everything, but you and other employers should be warned that working cultures that actively encourage and reward long hours, whether explicitly or implicitly, could amount to a PCP, with implications for the duty to make reasonable adjustments for disabled employees. A requirement to work long hours does not have to involve actual coercion in order to amount to a provision, criterion or practice.
You should therefore meet with him to discuss what additional hours he does feel are possible for him and make it clear that whenever he feels unable to work extra hours then he should tell you. It would also be worth getting his permission to arrange an Occupational Health assessment. Once you have that you should be able to re-asses what is possible, and how you can be supportive and legal.
One final point. A long working hours culture is not one that can be sustained over long periods of time before you will be risking other people becoming unwell, less productive and/or more prone to accidents. Arguably you are failing to consider your peoples’ health, safety and wellbeing.
The guidance provided in this article is just that – guidance. Before taking any action make sure that you know what you are doing, or call us for specific advice.