Employment Law Speed Read – 25/03/19
25th March, 2019
In City of Oxford Bus Services Ltd (t/a Oxford Bus Company) v Harvey the Employment Appeal Tribunal considered whether an employer's refusal to change working patterns was justified.
The Claimant was a Seventh Day Adventist, which prevented him from working between sunset on a Friday and sunset on a Saturday. He was employed by the Respondent as a bus driver. The Respondent’s bus drivers were required to work five out of seven days each week, which created difficulties for the Claimant.
After submitting a flexible working request, the Respondent agreed to move the Claimant to a different service that did not require Friday evening or Saturday day-time shifts, but made it clear that this was only on a temporary basis.
The Claimant brought claims of direct and indirect discrimination, harassment and victimisation because of his religion and belief.
The Employment Tribunal (ET) upheld the Claimant’s claim of indirect discrimination, but dismissed his other claims.
The Respondent accepted that its working arrangements imposed a provision, criterion or practice (PCP), but the question for the ET was whether the PCP was a proportionate means of achieving a legitimate aim.
The ET rejected the Respondent’s contentions that the shift change would have had a detrimental impact on the business, causing recruitment and retention pressures, potential for industrial unrest and a general difficulty in altering their rotas. The ET held that the fact the Respondent had been able to move the Claimant to different rotas showed there were effective steps that could be taken to meet his needs, which had not – when undertaken on a temporary basis – resulted in any inefficiency, unfairness to staff or disharmony.
The ET concluded that accommodating the Claimant’s needs would not have hampered the Respondent’s needs to ensure that they had the appropriate level of cover – any problems would arise not from granting the Claimant’s request, but from granting many such requests.
In addition, the ET held that the Respondent had failed to adduce evidence where it should have been produced and relied on assertion and speculative fears.
Employment Appeal Tribunal
The Respondent’s appeal was successful. The Employment Appeal Tribunal (EAT) held that the ET were entitled to be critical of gaps in the Respondent’s evidence, but were wrong to focus on how the PCP had been applied to the Claimant, rather than addressing whether the PCP could be justified as a rule in itself.
The EAT found that because the ET had focussed on the wrong question, their assessment of whether the Respondent was justified in applying the PCP to the Claimant was also wrong. The case has been remitted to the same tribunal to reconsider these issues.
Although the case has been remitted back to the same tribunal for reconsideration, it is helpful to see how the tribunal will consider whether a PCP is justified or not and what evidence an employer must adduce to demonstrate that a PCP is a proportionate means of achieving a legitimate aim.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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