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Justification of an employer’s rule should not be limited to the impact on an individual
/ June 2019

In The City of Oxford Bus Services Limited t/a Oxford Bus Company v Harvey, the Employment Appeal Tribunal (‘EAT’) held that when considering if a rule is justified, a tribunal should take into account the general application of the rule, rather than how it is applied to an individual Claimant.

The Claimant was employed by the Respondent as a bus driver. He was a Seventh Day Adventist and asked not to work between sunset on Friday and sunset on Saturday so that he could observe the Sabbath. This was accommodated but only on a temporary basis and the Claimant brought a claim for indirect discrimination. The tribunal upheld his claim ruling that the practice of requiring bus drivers to work five days out of seven put the Claimant at a particular disadvantage and was not justified. The tribunal concluded that there was insufficient evidence to support the Respondent’s asserted legitimate aim of maintaining a harmonious workforce.

The EAT overturned the decision stating that the tribunal had incorrectly focussed on the application of the rule on the Claimant rather than in general. It had failed to balance the Respondent’s aims with the potentially discriminatory impact of the rule.

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