Can we insist that employees work late?

Sometimes there are just not enough hours in the day. When you still have a long list of tasks to get through and the emails are piling up in your inbox, there are occasions when you need to work late to get through it all. However, assuming that all employees are willing and able to do this could be discriminatory.

The facts

In a recent Employment Appeal Tribunal case, Mr Carreras routinely worked long hours as an analyst in an independent brokerage and research firm, commonly until 11pm. Mr Carreras was then involved in a serious bicycle accident which rendered him far less able to do extended hours. He started experiencing dizziness, fatigue and headaches, had difficulties concentrating and focusing, and found it difficult to work in the evenings.

On his return to work, Mr Carreras initially worked a maximum of 8 hours a day. However, concerned that he might be penalised in a sector which expects long hours, he requested to work late on a couple of occasions. His employer then began to assume he would work late regularly, asking which nights he would be working rather than whether he would be prepared to work any at all.

When Mr Carreras alerted the owner of the business that he was struggling with working the late hours, due to tiredness caused by his injuries, he was told that he could either accept the hours or leave. He was told this loudly and in front of his colleagues. Mr Carreras resigned and claimed constructive dismissal and disability discrimination (a failure to make reasonable adjustments).

The decision

The duty to make reasonable adjustments can arise where a disabled person is placed at a substantial disadvantage compared with non-disabled employees by an employer's provision, criterion or practice ('PCP').

The Employment Appeal Tribunal was asked to consider whether there was a PCP which put Mr Carreras at a disadvantage due to his disability. The EAT decided that the expectation or assumption that Mr Carreras would work late constituted a PCP.

An employee does not have to be forced to do something for it to be a PCP. The reality of the situation was that Mr Carreras felt obliged to work late - his employer had requested that he do so with the expectation that he would comply. Mr Carreras believed that his bonus and career progression would have been penalised had he not worked the extra hours.

In practice

• Bear in mind that PCPs can be construed widely so review working practices to identify any 'unseen' PCPs such as late working, working away from home or weekend/shift working.
• If you have an employee who is disabled then consider making reasonable adjustments to late working or other practices. Good practice is to obtain medical advice and then consult on what adjustments would be appropriate.
• After an employee returns to work after a lengthy period of absence, it can be helpful to have a return to work meeting. Specifically check if they are comfortable with the expectations of the role.
• If you do expect employees to work late think about the following:
  • What do the contracts of employment say about working hours? Can employees be contractually required to work more than their core hours? Do you need additional contractual provisions or is it enough for there to be an assumption that employees will work late if necessary?
  • Are employees still getting their daily and weekly rest breaks? Do any of them need to be asked to enter into agreements opting-out of the 48 hour working week?
  • Who is affected by the practice of working extra hours? Are any women finding it difficult because they are the primary carer? Could any inability to work additional hours adversely influence bonus awards / appraisal ratings / promotion opportunities?

If you would like to discuss anything flagged in this blog, please get in touch with your usual Brodies' contact.