Balancing act

When deciding indirect discrimination claims, tribunals have to weigh up whether the relevant provision, criterion or practice (PCP) can be justified by the employer. In City of Oxford Bus Company Ltd t/a Oxford Bus Company v Harvey, the Employment Appeal Tribunal (EAT) held that tribunals have to balance the company’s aims against the discriminatory impact of the PCP that it chose to meet those aims.

Unite the Union instructed Thompsons to act on its member’s behalf.

Basic facts

Mr Harvey, a Seventh Day Adventist, worked as a bus driver. As a requirement of his religion, he could not work on the Sabbath (Friday sunset to Saturday sunset). However, his employer had a requirement for drivers to be rostered to work every day of the week and were not prepared to make an exception for Mr Harvey.

After being rostered to work a weekend in October 2015, he explained he could not work from sunset on Friday to sunset on Saturday. Although arrangements were made to accommodate him on that occasion, he had missed 22 weekend shifts by April 2016. The company gave Mr Harvey a disciplinary warning. After tribunal proceedings were started, the company moved him on a temporary basis to another service which did not require weekend working but refused to make it permanent. The company argued that  if more drivers asked to be accommodated in the same way, the roster system would become unsustainable.

Mr Harvey brought a claim for indirect religious discrimination, arguing that the company had imposed a provision, criterion or practice (PCP) requiring all bus drivers to work on any five days out of seven. The company argued it was justified in that it was a proportionate means of achieving its aim of ““efficiency, fairness to all staff / a harmonious workforce, and recruitment and retention”.

Tribunal decision

Accepting that Mr Harvey had been put at a disadvantage by the PCP, the tribunal reasoned that, having moved him to different rotas in the past, there were clearly “effective steps” that the company could take to meet his needs which had not resulted in any “inefficiency, unfairness to staff or disharmony”. Although the company argued that there was a cost attached to these steps, the tribunal found that they were minor.

The tribunal also pointed out that the company frequently had to react to fluctuations of its services and still maintain an efficient service. Given the complexity involved in making changes to the schedules during the year, the tribunal took the view that meeting Mr Harvey’s requirements could also have been accommodated.

It concluded therefore that the real reason for its reluctance to accommodate Mr Harvey’s needs was a belief that it would have to do the same “for all those who are religious”.

The tribunal was critical of the employer’s lack of evidence, holding that their argument that they could not make the requested changes to the PCP were based on nothing more than assertions that other drivers would start asking for an amended rota.

EAT decision

Upholding the company’s appeal, the EAT held that the tribunal had focused on how the PCP had been applied to Mr Harvey rather than on whether the PCP could be justified as a rule in itself.

Despite the tribunal having recognised that the problems facing the company did not arise from granting Mr Harvey’s request but from granting “many such requests”, the EAT decided that it failed to follow through on that point.

Although it may have been sceptical of the real extent of this as an issue, the EAT held that the tribunal needed to balance the company’s aims against the discriminatory impact of the PCP it had chosen to meet those aims. This balancing exercise needed to be carried out in terms of the rule as a whole, not just how it applied to Mr Harvey.

The EAT decided to refer the matter back to the original tribunal to consider the technical point on justification. A hearing has not yet been listed.