Should an employment tribunal only consider how an employer’s ‘provisions, criterion or practice’ is applied to the individual claimant?

Should an employment tribunal only consider how an employer’s ‘provisions, criterion or practice’ is applied to the individual claimant?

Blaser Mills Law successfully represented Oxford Bus in the recent Employment Appeal Tribunal (EAT) appeal case of The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey.

The EAT overturned the decision of the original Employment Tribunal on the basis that the Tribunal had only assessed the justification for an employer’s policy in relation to the individual claimant only rather than the wider workforce in general.

Case background:

One of the company’s drivers, a Seventh Day Adventist, complained that the company’s policy of requiring all drivers, whatever their faith, to work a set, rotating shift pattern was indirect discrimination because it required him to occasionally work on Sabbath days (Friday-Saturday sunset to sunrise), if he was unable to swap his shift with another driver. He maintained it was more difficult for him to swap shifts as most drivers wanted time off on a Friday evening and Saturday.

At first instance the Employment Tribunal found that the policy was a ‘provision, criterion or practice’ (PCP), that put the claimant at a disadvantage and that could not, therefore, be justified. However, Oxford Bus considered that the ET had applied the test incorrectly.

Appeal

Oxford Bus appealed the decision and it was successfully overturned. The EAT determined that the original decision wrongly focused on the particular application of the PCP on the Claimant rather than the justification for the rule in general. The case has been remitted to the Tribunal to be heard again.

For the full case judgement click here.

If you would like any further information on indirect discrimination or on employment law in general please contact James Simpson on 01494 478689 or at jfs@blasermills.co.uk