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Will Requiring Someone to Work at the Weekend Amount to Discrimination on the Grounds of Religious Belief?

on Friday, 29 March 2019.

Not on the facts of City of Oxford Bus Services Limited v Harvey but the details behind each case will be key.

Background

The Oxford Bus Company (the Company) employed Mr Harvey who was a Seventh Day Adventist (SDA) as a bus driver. The Company's policy was that drivers were required to work five days out of seven days each week, including Fridays and Saturdays. This policy created difficulties for Mr Harvey, as his faith required him to observe the Sabbath - meaning he cannot work from sunset on a Friday to sunset on a Saturday.

In 2015 when Mr Harvey originally applied for the job, the application form had not asked about his religion or about any restrictions on his ability to work. Although the Company had a document which explained its rota system, this was never shown to Mr Harvey at any point during the application and interview process.

Mr Harvey raised objections to working Friday evenings and Saturdays after he was given his first rota. The Company then made a temporary accommodation for him but refused to make it permanent. Mr Harvey then brought a claim to the Employment Tribunal (ET) arguing unjustified indirect religious discrimination.

The ET

The key question for the ET was whether the Company's rota policy was a proportionate means of achieving a legitimate aim.

It was accepted that the Company had established the legitimate aims of ensuring efficiency, fairness to all staff, the maintenance of a harmonious workforce, and recruitment and retention, but the ET considered that it had failed to demonstrate that the policy was a proportionate means of achieving those aims: in particular, because it could have taken steps to accommodate Mr Harvey's demands. The Company appealed on the grounds that focussing on whether Mr Harvey's request could be accommodated was wrong - the ET should have looked at the effect that granting the request would have on the company's business as a whole.

The Employment Appeal Tribunal

The EAT allowed the appeal and overturned the ET's decision. It stated the ET wrongly focused on how the policy had been applied to Mr Harvey, rather than the workforce as a whole.

The case has now been remitted back to the same ET to reconsider the issue of justification.

Best Practice

Where a policy that applies to everyone has a disproportionate effect on a particular group who are protected by the Equality Act, employers should be careful to ensure that the policy is a proportionate way of achieving a legitimate aim.


For more information, please contact Michael Halsey in our Employment Law team on 020 7665 0842.

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