Background

In The City of Oxford Bus Services Ltd (t/a Oxford Bus Company) v Harvey [2018] UKEAT 0171 18 2112, the Company employed Mr Harvey, a Seventh Day Adventist, as a bus driver. Drivers were required to work on five out of seven days each week, including on Fridays and Saturdays but Mr Harvey, as an Adventist, was obliged to respect the Sabbath by not working between sunset on a Friday and sunset on a Saturday.

When Mr Harvey originally applied for the job, the application form had not asked about his religion or about any restrictions on his ability to work; and though the Company had a document that explained its rostering system and that drivers would work five days out of seven, including either Saturday or Sunday, it was not shown to Mr Harvey at any point during the application and interview process [4]. Though he explained at his interview that he was an Adventist, what that would mean in terms of his ability to work was not explored [5]. The Company made a temporary accommodation for him but refused to make it permanent [11] and, in the end, he went to an Employment Tribunal arguing unjustified indirect religious discrimination [16].

Accepting that the Company’s working arrangements imposed a provision, criterion or practice (“PCP”) that placed Mr Harvey at a disadvantage, the ET had to decide whether or not the PCP was a proportionate means of achieving a legitimate aim. It was accepted that the Company had established the legitimate aims of ensuring efficiency, fairness to all staff, the maintenance of a harmonious workforce, and recruitment and retention, but the ET considered that it had failed to demonstrate that the PCP was a proportionate means of achieving those aims: in particular, because it had failed to adduce sufficient evidence and had not been able to demonstrate that its aims could not be met by accommodating the working arrangements that Mr Harvey requested. Accommodating Mr Harvey would not have hampered the Company’s need to ensure the appropriate level of cover: any problems would arise not from granting Mr Harvey’s request but from granting many such requests [19]. The real or operative reason, concluded the ET, was the fear that there were many employees who would not wish to work on their holy day or feast day and that “if the Respondent allows the Claimant to avoid being rostered for his holy day … it has to do the same for all those who are religious” (ET, paragraph 128) [19]. The Oxford Bus Company appealed.

The arguments

The Company contended that the ET had failed to apply the test for justification correctly. Ground 1 was that the ET had accepted that the Company had demonstrated that it had legitimate aims but, in assessing whether the PCP was a proportionate means of achieving those aims, it had repeatedly focused on whether the  request not to work from Friday evening to Saturday evening could have been accommodated – which had never been in dispute – rather than whether the Company’s rule was a generally proportionate means of achieving those aims [29]. Ground 2 was that the ET had failed to give adequate weight to the Company’s judgment of the situation: it had acknowledged that the Company’s problem was not  Mr Harvey’s individual request but the possibility of having to accommodate lots of them – but had then failed to analyse whether the potential problems meant that the rule was a proportionate means of achieving a legitimate aim. Furthermore, it gave no weight to the Company’s evidence on that point. The Company argued that an employer was entitled to rely on its own knowledge that a significant proportion of its staff would want weekends off and would feel aggrieved if they were required to work weekends when others were not [31]. As to Ground 3, the Company argued that there was evidence that other employees were “waiting to see what [Mr Harvey] could demand before doing so themselves” – which was a further demonstration of the need for the rule to be applicable to all staff [32].

Mr Harvey argued that the Company had failed to produce evidence to show that the PCP was justified and that the ET had made no error in law in rejecting its case on justification [33]. The ET had looked at the question of justification for the PCP and had concluded, correctly, that the Company had not discharged the burden of justification [34].

The judgment

Taking Ground 3 first, HHJ Eady QC was “troubled” by the ET’s reasoning: “whether it kept its focus on the justification of the rule that was in issue rather than its particular application to the Claimant”. The ET had to test the question of proportionality

“in terms of the rule or measure itself – the PCP – not merely its application in an individual case. That … requires the ET to scrutinise the employer’s systems of working; here, the service being provided by the Respondent and the way it structured its working arrangements for bus drivers on a rota system. The ET’s focus in this case was, however, on how the PCP had been applied to the Claimant and the question of accommodation for him. The issue that the ET was required to address was whether the PCP could be justified as a rule in itself” [41: emphasis added].

The ET’s failure to balance the importance of the Company’s aims against the discriminatory impact of the PCP that it had chosen to meet those aims – not merely the rule’s application to Mr Harvey – undermined the ET’s approach [42] and Ground 1 of the appeal had to be allowed [43]. Grounds 2 and 3 then fell away [44].

Disposal

HHJ Eady decided, on balance, as follows:

“Insofar as it is reasonably practicable, I direct that this matter return for reconsideration by the same ET on the question of proportionality raised by the claim of indirect discrimination. As for whether the ET will need to hear further evidence or rehear aspects of the evidence, that is a matter of case management for the ET. [47]”

[Nostra culpa, we missed when the judgment first appeared ☹️. With thanks to Neil Addison for drawing it to our attention.]