J Davies v EE Limited

A contractual requirement to work specified full-time hours can be a provision, criterion or practice (PCP), even though the employer also operates part-time roles. A PCP need only have actual or potential general applicability. It may apply to a defined group, such as employees in full-time roles, rather than the entire workforce.

Temporary adjustments, including a phased return on reduced hours, do not displace the underlying PCP. They must be distinguished from the base position which the adjustment is intended to ameliorate. Nor does an employer’s willingness to consider a future transfer to a part-time role prevent the PCP applying while the employee remains in the full-time role.

The claimant was employed under a full-time contract requiring an average of 40 hours each week. Following a disability affecting her vocal cords, she undertook a phased return on reduced hours and sought a part-time role. The respondent had part-time teams but no immediate vacancy. The claimant resigned after returning to full-time hours.

The Employment Tribunal dismissed her reasonable-adjustments and constructive-dismissal claims, holding that neither asserted PCP existed. It relied on the existence of part-time employees, the phased return, and the respondent’s enquiries about a possible future transfer. The claimant appealed. The central issue was whether the requirement that she work 40 hours per week remained a PCP applied to her.

1. Appeal allowed and claims remitted. The Employment Tribunal erred in holding that the alleged PCP was not applied at all.

2. A PCP must have actual or potential general applicability, but it need not apply to the whole workforce. The claimant remained in a full-time role with a contractual requirement to work 40 hours per week. That requirement was applied to all employees in full-time roles and therefore had the necessary general applicability. The existence of separate part-time roles did not alter that conclusion.

3. Following Finnigan v Chief Constable of Northumbria Police, a PCP must be distinguished from adjustments made to alleviate its effects. The claimant’s phased return on reduced hours was an adjustment to the continuing full-time-hours requirement; it did not cause that requirement to cease to be a PCP. Likewise, a willingness to consider a transfer to a part-time vacancy did not prevent the PCP applying while she remained in her full-time post.

4. There was only one correct answer on the contractual 40-hour requirement: it was applied throughout the period from the respondent’s constructive knowledge of disability until resignation. Whether a further requirement that each shift last about nine and a half hours was applied was not conclusively answered, since it was not contractual.

5. The newly constituted Employment Tribunal must determine whether the PCP caused substantial disadvantage, whether the respondent had the knowledge required by Equality Act 2010 section 20 and Schedule 8 paragraph 20, and whether reasonable steps could have avoided the disadvantage. That determination may affect whether there was a fundamental breach supporting constructive dismissal.

• Employment Appeal Tribunal: Allowed the appeal and remitted the reasonable-adjustments and constructive-dismissal claims to a newly constituted Employment Tribunal: [2022] EAT 191.
• Employment Tribunal: Employment Judge Roper dismissed the reasonable-adjustments and constructive-dismissal claims after a hearing on 12 and 13 July 2021. The judgment and reasons were sent on 22 July 2021. A discrimination-arising-from-disability claim succeeded to a limited extent.