UK: In The Round – Correct Approach To Justifying Requirement For Saturday Working

The City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey involved an indirect religious discrimination claim. The EAT had to decide whether the tribunal had approached the employer's justification defence correctly and found that it had not. The tribunal had focussed on the impact of the requirement for Saturday working on the individual and had not taken the wider business circumstances into account.

The employer operated bus services in Oxford. Its rostering arrangements required all bus drivers to work five days a week, including at least one day at the weekend. As a Seventh Day Adventist, Mr Harvey could not work between sunset on Friday and sunset on Saturday and brought a claim that the rostering requirements placed him at a disadvantage because of his religious beliefs. The tribunal rejected the employer's argument that the requirement was justified as a proportionate means of achieving legitimate aims of efficiency, fairness to all staff, a harmonious workforce and recruitment and retention. Although the tribunal accepted that the employer had legitimate aims, the rostering arrangements were not proportionate. There was no reason why the employer could not have accommodated the employee's need not to work at the specified times.

The EAT overturned that decision. When considering justification, the tribunal had focussed on the application of the rule to the individual, rather than the proportionality of the rule itself. That was not the correct approach. The employer had provided evidence of why the rule was needed in terms of its workforce as a whole, given that many employees might have personal circumstances that made it difficult for them to work on particular days and that there was a general reluctance among the workforce to work at weekends. However, the tribunal had failed to balance the importance of the employer's aims against the discriminatory impact of the rostering arrangements as applied to the workforce as a whole. It was not an answer to say that the employer could have made an exception for the individual employee. The case would have to go back to the tribunal for further consideration.

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