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Indirect Discrimination

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When considering if a rule is justified, in an indirect discrimination case, should a tribunal only consider how it was applied to the individual claimant?

No, held the EAT in The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey.

The Claimant, who was employed by the Respondent as a bus driver, was a Seventh Day Adventist and, in order to observe the Sabbath, asked not to work between sunset on Friday and sunset on Saturday. He had been given a service that accommodated this but it was not permanent. The Respondent was concerned about the risk of industrial unrest if other drivers asked for time off for other religious events or festivals. The Claimant brought a claim of indirect discrimination on the grounds of religion or belief.

The tribunal upheld his claim. It ruled that the 'provision, criterion or practice' of requiring bus drivers to work 5 days out of 7 put the Claimant at a particular disadvantage, and was not justified. The tribunal held that there was insufficient evidence to support one of the legitimate aims relied upon by the Respondent - maintaining a 'harmonious workforce'.

The EAT overturned the decision. The tribunal had focussed, wrongly, on the particular application of the rule on the Claimant rather than the justification for the rule in general. While the tribunal had recognised that the Respondent's problems arose not from granting the Claimant's request, but from granting many such requests, it failed to balance the Respondent's aims with the potentially discriminatory impact of the rule. The case was remitted back to the same tribunal to reconsider this issue.

Thanks to James English of Ward Hadaway for preparing this case summary.