The EAT held the tribunal wrongly focused on whether an exception for the individual was justified, in an indirect discrimination claim.
The employer’s bus drivers were required to work five out of seven days each week, which could include Fridays and Saturdays. The employer said it designed rotas to share duties fairly and to give a fair balance of unpopular shifts to every driver.
The employment tribunal held the employer was unjustified to refuse to rota a bus driver who was a Seventh Day Adventist so as to avoid him working on the Sabbath, sunset on Friday to sunset on Saturday. Accordingly, said the tribunal, the employer was liable for indirect discrimination.
The EAT overturned the decision and sent it back to the tribunal for reconsideration. The EAT said the tribunal should look not at whether an exception for this claimant would have been justified, but whether the PCP itself (the general rule etc) is justified.
The tribunal considered the employer’s fear was that there were many employees who would not wish to work on their holy day or feast day. Any real problems to the employer arose not from granting the request for the claimant, but from granting many such requests.
The case is City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey, www.bailii.org/uk/cases/UKEAT/2018/0171_18_2112.html