A recent decision from the Employment Appeals Tribunal has considered whether requiring a Christian to work on a Sunday amounted to indirect religious discrimination contrary to the Equality Act 2010.
The case, Mba v Mayor and Burgesses of the London Borough of Merton, concerned a care worker (Ms Mba) at a children's home. The care home was open 7 days a week and employed a rota system which required staff to work on certain Sundays. Ms Mba, on the basis of her Christian beliefs, refused to work on Sundays.
Ms Mba's beliefs were initially accommodated by the care home, however the care home eventually insisted that she work Sundays as permitted in her contract of employment. After refusing to do so, Ms Mba resigned and brought an indirect discrimination claim against the care home. The basis of the claim was that the requirement to work on Sundays amounted to a provision, criterion or practice (PCP) that discriminated against Christians and, as such, she claimed that the care home had been guilty of indirect discrimination under section 19 of the Equality Act 2010.
It was accepted that the requirement to work on Sundays could amount to indirect discrimination. However, the care-home claimed that the requirement could be objectively justified. Under the Equality Act an objective justification defence is available to an indirect discrimination claim if the discrimination in question was undertaken as a proportionate means of achieving a legitimate aim.
The care home had a number of aims which it sought to achieve in requiring Ms Mba to work on a Sunday. These included achieving an appropriate gender balance on each shift, seniority mix on each shift, providing a cost-effective service, fair treatment of all staff and ensuring continuity of care in staff looking after the children.
The EAT upheld the Tribunal's decision that the requirement to work on Sundays was objectively justified. The aims identified by the care-home were legitimate and the requirement of having staff work on a Sunday was a proportionate means of achieving those aims.
Despite finding in favour of the care-home, the case does not establish a general principle that Christians can always be required to work Sundays. Instead the question will always be one of fact and degree. In this case a justification was found to be present, and the employer was found to have acted proportionately in pursuing this justification. In all cases the genuine need for the employer to have the PCP in place must be balanced against its discriminatory effect.
Despite the absence of a broader general principle, the case still provides guidance on when indirect discrimination will be permitted and reinforces for employers that the issue is always one of degree and circumstance.
The reasoning in this case must be considered alongside the recent European Court of Justice ruling in Eweida and others v United Kingdom. In that case it was held that the impact of the PCP should be considered on a more individual level, rather than with reference to the religious group as a whole. So the discriminatory effect should be judged by looking at its impact on the individual themselves rather than by consideration of its wider impact. As such, the outcome of this case could be open to question.