The City of Oxford Bus Services Ltd (t/a Oxford Bus Company) v Harvey

For indirect discrimination under section 19(2) of the Equality Act 2010, proportionality requires an objective assessment of the PCP itself in the circumstances of the employer’s business. It is not enough to ask whether an individual claimant could be accommodated.

The Employment Tribunal must balance the employer’s legitimate aims and business systems against the discriminatory impact of the rule on those sharing the protected characteristic. It may scrutinise unsupported managerial assertions, but it must assess the rule’s wider operation, including the consequences of making any exception available to all adversely affected persons.

A Seventh Day Adventist bus driver could not work between sunset on Friday and sunset on Saturday. His employer required drivers to be available for five days out of seven, including weekend shifts, subject to shift swaps and flexible-working requests.

The Employment Tribunal upheld his indirect religion-or-belief discrimination claim. It accepted the employer’s legitimate aims but held that the working-arrangements PCP was not proportionate, principally because the claimant could be accommodated and the employer had not substantiated its wider concerns.

The employer appealed. The central issue was whether the Tribunal had assessed objective justification by reference to the PCP as a business rule, rather than its application to this claimant.

1. Appeal allowed. The Employment Tribunal erred in law in its proportionality assessment under section 19(2) of the Equality Act 2010.

2. Once disadvantage and legitimate aims were established, the Tribunal had to determine objectively whether the PCP was an appropriate and reasonably necessary means of achieving those aims. That required a balancing exercise between the employer’s needs and the discriminatory impact of the rule.

3. The decisive distinction was between justifying an ad hominem exception for the claimant and justifying the PCP in the employer’s business. An individual exception may be possible, but it does not answer whether the rule should apply to all persons adversely affected by it. The Tribunal had focused on whether this claimant’s Sabbath observance could be accommodated. It had not adequately assessed whether the general five-in-seven rota rule was proportionate in light of the employer’s systems, workforce, fairness concerns and the possible effect of multiple comparable requests.

4. The Tribunal was entitled to scrutinise gaps in evidence and managerial assertions. However, its failure to apply the correct focus undermined its conclusion. It had also erred in treating the evidence of possible industrial unrest as merely assertion without acknowledging relevant evidence from the union representative.

5. The indirect-discrimination claim was remitted, so far as reasonably practicable, to the same Employment Tribunal for reconsideration of proportionality. Further evidence or rehearing was left to that Tribunal’s case management.

• Employment Appeal Tribunal: Allowed the employer’s appeal and remitted the proportionality issue to the same Employment Tribunal.
• Reading Employment Tribunal: Dismissed direct discrimination, harassment and victimisation complaints, but upheld the indirect religion-or-belief discrimination complaint.