ICAEW.com works better with JavaScript enabled.

Case law: Employers can justify indirect discrimination even if issues raised by employee's complaint are unresolved

Employers trying to justify an apparently discriminatory provision, criteria or practice can do so by justifying it in general - balancing its impact against employees sharing a protected characteristic that affects when they can work - and not its impact on the particular employee complaining about it.

April 2019

This update was published in Legal Alert - April 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

A bus company required its drivers to work five days out of seven, including either Saturday or Sunday. However, a Seventh Day Adventist driver asked to be excused from working between sunset on Friday and sunset on Saturday on religious grounds. The employer temporarily changed the driver's route to accommodate his request, but refused a permanent arrangement. It said it was open to the driver to swap days with other drivers informally and/or put in a request for flexible working.

The driver claimed unlawful indirect discrimination on the grounds of religion or belief. There is unlawful indirect discrimination if:

  • an employer operates a provision, criterion or practice (a 'PCP') which puts a group of employees (including the employee who is complaining about it) who share a 'protected characteristic' (such as their religion or beliefs) at a substantial disadvantage compared with people who do not share it; and
  • the disadvantage suffered by the individual making the complaint and the other members of the group are the same.

Effectively, it catches situations where an employer's PCP applies to everyone, but has a worse effect on a particular group of employees sharing a protected characteristic than on the rest of the workforce. However, a discriminatory PCP will not be unlawful if it can be objectively justified as a proportionate means of achieving a legitimate aim.

The Employment Tribunal (ET) accepted that the rule requiring drivers to work five out of seven days including a Saturday or Sunday was a PCP, it was discriminatory and the employer's aims of ‘efficiency, fairness to all staff/a harmonious workforce, and recruitment and retention’ were legitimate aims.

However, the ET ruled that the employer had not demonstrated that the rule was a proportionate means of achieving these aims. In particular, the employer had produced insufficient evidence to show it could not meet its aims if it accommodated the working arrangements the driver had asked for. It therefore ruled that the claim for unlawful indirect discrimination should succeed.

On appeal, the Employment Appeal Tribunal (EAT) said the ET had taken the wrong approach. The ET's focus had been on how the PCP had been applied to the particular driver, and whether the employer could have accommodated his wishes by making an exception to the rule for him. Instead, it should have focused on whether the PCP could be justified as a rule in itself, rather than its application to the employee complaining about it.

The EAT therefore drew a distinction between justifying the application of the rule to a particular individual and justifying it in the particular circumstances of the business. By focusing on the application of the PCP to the particular driver, the ET had failed to carry out the requisite assessment of that PCP in the business's circumstances.

It therefore sent the case back to the ET to reconsider.

Operative date

  • Now

Recommendation

  • Employers attempting to show that an apparently discriminatory provision, criteria or practice is a proportionate means of achieving a legitimate aim should focus on how they can justify it in general, in the circumstances of the business, and not its impact on the particular employee complaining about it.

Case ref: The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey UKEAT/0171/18/JOJ

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

Copyright © Atom Content Marketing