Mr Harvey, a Seventh Day Adventist, was employed by the Oxford Bus Company as a bus driver. Drivers were required to work on five days out of seven, on a rota system which included working on Fridays and Saturdays. As an Adventist, Mr Harvey was obliged to respect the Sabbath by not working between sunset on a Friday and sunset on a Saturday.  Mr Harvey tried to balance his work requirements by switching duties with colleagues if he was rostered to work on the Sabbath.  Then his employer made a temporary arrangement for him that he would not have shifts allocated for the Sabbath period.  However, the bus company refused to make the arrangement permanent, being concerned that (among other things) this might trigger industrial unrest if other drivers started asking for time off for religious events/festivals.  Mr Harvey filed a claim with the Employment Tribunal, alleging indirect religious discrimination.

Employment Tribunal

The tribunal recognised that the employer’s working arrangements imposed a provision, criterion or practice (“PCP”) that, on the face of things, placed Mr Harvey at a disadvantage on the grounds of his religion.

The tribunal’s next decision was to consider whether the PCP was a proportionate means of achieving a legitimate aim, and it was accepted that the aims presented by the employer (being ensuring efficiency, fairness to all staff, the maintenance of a harmonious workforce, and recruitment and retention) were potentially legitimate.  However, in the tribunal’s view, the employer had failed to demonstrate that the PCP was a proportionate means of achieving those aims.  The Tribunal look at Mr Harvey’s circumstances in isolation, rather than the wider issue of the problems which would arise if lots of staff requested the same changes and found that the employer could have accommodated Mr Harvey’s request (not whether this was so in Mr Harvey’s particular circumstances) and Mr Harvey won his case before the Employment Tribunal.  The Oxford Bus Company appealed.

Employment Appeal Tribunal

Before the EAT, the employer argued that the tribunal had not applied the test for justification properly.  In particular, when the tribunal assessed whether the PCP was a proportionate means of achieving aims which were agreed to be legitimate, it had repeatedly focused on whether Mr Harvey’s request not to work on the Sabbath could have been accommodated.  Oxford Bus Company argued that the tribunal should have been assessing whether the Company’s rule was a generally proportionate means of achieving its aims.

The EAT agreed with the employer, and over-turned the original decision.  It held that the tribunal had erred by placing its focus on how the PCP had been applied to Mr Harvey and the question of accommodation for him. The issue that the tribunal should have addressed was whether the PCP could be justified as a rule in itself.  The claim was therefore remitted to the original tribunal to be reconsidered.

Comment: This case highlights the difficulties which can be faced by employers trying to balance requests from staff for time off with the demands of the business.  This is particularly the case where irregular shift patterns are involved.    It is reassuring to know that employers can look at the impact across the workforce, not just on one employee, when justifying its policies.

The City of Oxford Bus Services Ltd (t/a Oxford Bus Company) v Harvey [2018]

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