Background:

The claimant was employed as a customer service representative (call-centre role) from May 2019 until her resignation in February 2020.   Her contract outlined that she was to work 40 hours per week.

In August 2019 the claimant was diagnosed with an impairment with her vocal chords.  She attended a meeting with her employer in September 2019 when they had constructive knowledge of a disability.  From January 2020 the claimant started a phased return to work which then returned to full-time hours in February 2020.  It was only 13 days after this full return that the claimant resigned.

The issue for the claimant was the assertion that the full-time working pattern was a provision, criterion or practice which placed her at disadvantage compared to non-disabled colleagues.

Outcome:

The Tribunal at first instance found that it was not a provision, criterion or practice which could be used to establish substantial disadvantage.  The Tribunal found that the resignation of the claimant was actually due to a refusal to give paid leave for a hospital appointment.   The claimant appealed this decision to the EAT.

The EAT allowed the appeal.   They found that the requirement to work 40 hours per week was a provision, criterion or practice on the basis that it would be applied to all staff in full-time roles.  The fact, as had been noted at first instance, that there were part-time roles within the respondent did not mitigate the fact that the 40 hours per week was a provision, criterion or practice.  The respondent argued that there had been a phased return to work and that should have been taken into account.  However, the EAT found that it did not mean that the provision or criterion ceased to exist – as was shown by the fact that she did, in fact, return to full-time work.

The EAT remitted the case back to the Tribunal to determine whether the 40 hours per week criterion or provision then led to a substantial disadvantage for those who were disabled compared to non-disabled colleagues.  This would then be examined as to whether the respondent had the knowledge that the claimant would have been disadvantaged and then whether there could be reasonable adjustments made. This would then allow for a determination as to whether there was a fundamental breach of contract for the claimant’s constructive dismissal claim.

Practical Guidance for Employers:

This case highlights that having a set number of hours for ‘full-time’ employees does constitute a provision, criterion or practice.  As a result, it then must be examined through the prism of whether it could lead to substantial disadvantage based upon a protected characteristic and then in the context of disability whether a reasonable adjustment would have to be made.  Of course, relating to indirect discrimination, it would then also be open to employers to show that any provision, criterion or practice is objectively justifiable.  It will be interesting to see the Tribunal’s analysis of this having dealt with the fact that it is a provision, criterion or practice.

https://www.gov.uk/employment-appeal-tribunal-decisions/mrs-j-davies-v-ee-ltd-2022-eat-191