Friday 27 May 2016

Discrimination: provision, criterion or practice

Thanks to James Medhurst of Hill Hofstetter for preparing this case summary
Does an employee have to be forced to do something for it to be a provision, criterion or practice?

No, held the EAT in Carreras v United First Partners Research.

The Claimant was disabled, having suffered serious injuries in a cycling accident. He said that it was a requirement of the Respondent that he would work late but the employment tribunal dismissed his claim on the grounds that, although there was an assumption that he would work late, there was no coercion. The employment tribunal did find that the Claimant had been placed at a disadvantage, but held that the disadvantage which it found was not the same as the one which had been pleaded.

On appeal, the Claimant described this reasoning as "an exercise in semantics" and the EAT agreed that "an overly technical or narrow approach" should not be adopted. Although a simple request cannot be a provision, criterion or practice, the Respondent in this case had done more than request that the Claimant work late. There had been an expectation and an assumption that he would do so.

Because no findings were made about the nature and extent of the disadvantage, or whether any adjustments would have been reasonable, the case was remitted to the same employment tribunal.

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