The employer’s practice of distributing shifts to bus drivers resulted in the claimant, a Seventh Day Adventist, being required to work on his Sabbath. Was the employer’s practice unlawful as indirect religious discrimination? The EAT held that the tribunal should have considered whether the employer’s practice as a whole was justified, not whether the employer was justified in refusing to make an exception for the claimant.
Employment Appeal Tribunal (EAT), 2018 www.bailii.org/uk/cases/UKEAT/2018/0171_18_2112.html
The claimant was a bus driver. Drivers were required to work five days in every week, including either Saturday or Sunday. The claimant was a Seventh Day Adventist. To respect the Sabbath, this required him not to work between sunset on a Friday and sunset on a Saturday. The claimant was given a shift rota requiring him to work Friday evening and Saturday daytime. Drivers were able to “swap” shifts with other drivers but he could not always arrange this. Temporary steps were taken to meet the claimant’s needs, but the employer was not willing to make them permanent.
The employer said the rotas were designed to share duties fairly and to give a fair balance of unpopular shifts to every driver. If any driver did not work their fair share, it undermined the balance and some drivers would have to work more of the unpopular shifts. This would lead to disharmony within the workforce, causing drivers to leave and perhaps ultimately industrial action.
The employment tribunal upheld the driver’s claim of indirect religious discrimination under s.19 Equality Act. The employer operated a provision, criterion or practice (“PCP”) requiring all bus drivers to work a rota that included shifts on any five days from all seven days of the week, subject to an ability to swap with other drivers. The claimant was unable to work on the Sabbath due to his religious belief. The employer had failed to show justification: the tribunal was not been satisfied that the prevailing circumstances here were such that refusing the claimant’s request was a proportionate means of achieving a legitimate aim.
Held by the EAT: The employment tribunal had taken the wrong approach. It should have considered whether the PCP as a whole was justified, not whether the employer was justified in refusing to make an exception for the claimant.
The Employment Appeal Tribunal (EAT) held the employment tribunal had wrongly focused on whether granting an exception to the claimant was proportionate. The test is whether the rule is proportionate, not its particular application to the claimant.
That EAT said that when carrying out the requisite assessment there is a distinction between justifying the application of the rule to a particular individual and justifying the rule in the particular circumstances of the business. In Seldon v Clarkson Wright and Jakes (supremecourt.uk) the Supreme Court had observed:
“There is therefore a distinction between justifying the application of the rule to a particular individual, which in many cases would negate the purposes of having a rule, and justifying the rule in the particular circumstances of the business” (paragraph 66).
The Supreme Court had also made this point in Homer v Chief Constable of West Yorkshire Police (supremecourt.uk):
“As the EAT said, an ad hominem [ie individual] exception may be the right answer in personnel management terms but it is not the answer to a discrimination claim. Any exception has to be made for everyone who is adversely affected by the rule” (paragraph 25).
The employment tribunal in this case had found that “Any real problems to the [employer] arise not from granting the request [for the claimant] but from granting many such requests”. However the tribunal then failed to follow that point through. It may have been sceptical of the employer’s evidence as to the real extent of this as an issue, but it needed to balance the importance of the employer’s aims against the discriminatory impact of the PCP – a balancing exercise that needed to be carried out in terms of the rule, not merely its application to the claimant.
The case was sent back to the employment tribunal for reconsideration.
This case concerned the justification defence for indirect discrimination (s.19 EqA). That is where the employer etc applies a provision, criterion or practice (PCP) which is apparently neutral, but which has the effect of creating a barrier for those with a particular characteristic, eg a religion in this case. The PCP is unlawful unless the employer etc shows it is objectively justified, ie a proportionate means of achieving a legitimate aim.
S.15 EqA is different
Indirect discrimination needs to be distinguished from the justification defence for discrimination arising from disability (s.15 EqA). Here the question is whether the unfavourable treatment of the claimant (arising in consequence of the disability) is a proportionate means of achieving a legitimate aim.
So under s.15 one looks at whether the treatment of that individual was proportionate, not whether some general rule was proportionate. S.15 does not mention a provision, criterion or practice (“PCP”). The s.15 approach of focusing on the individual was considered by the Supreme Court in Akerman-Livingstone v Aster Communities Ltd, 2015: Objective justification defence>Four-stage structured approach. In summary, this City of Oxford Bus Services case does not apply to s.15.
Inconsistent application of the principle for indirect discrimination
However the principle in this bus case should presumably apply for any indirect discrimination claim under s.19, including for disability. The court should look at whether the rule rather than an exception is proportionate. The Court of Appeal failed to do this in the disability case of Owen v Amec Foster Wheeler Energy, 2019, presumably because the point was not argued.
In the Owen case the Court of Appeal held that it was not indirect disability discrimination for the employer to refuse to send the claimant on an assignment to Dubai because of high medical risk. The court looked at the claimant’s individual case. An occupational health practitioner had said for example that Dubai had a higher medical risk rating than the UK, and that increased heat and humidity would increase the risk for the claimant’s particular health conditions.