In Mba v Mayor and Burgesses of the London Borough of Merton the Court of Appeal has considered what amounts to a proportionate means of achieving a legitimate aim and when religious discrimination may be justified. It concluded that a requirement for a Christian employee to work on a Sunday may be justified in certain circumstances.

Mrs Mba is a practicising Christian who has a deep and sincere belief that Sunday is a day for worship and not for work. She worked as a care assistant in a children’s home and her job description included a specific provision requiring her to undertake duties over weekends. At first the Council arranged the roster so that she did not work Sundays. However when it began to roster her for Sunday work she refused to so and eventually resigned claiming unfair dismissal and indirect religious discrimination. The Employment Tribunal concluded that although there was potentially religious discrimination the requirement to work Sundays was a provision, criterion or practice which was a proportionate means of achieving a legitimate aim. The Council had made efforts to accommodate her and was prepared to arrange the shifts in a way that enabled her to attend church to worship each Sunday. In identifying its reasons the Employment Tribunal did however also state that believing that Sunday should be a day of rest and worship upon which no paid employment was undertaken is not a core component of the Christian faith. Mrs Mba appealed and the EAT agreed with the ET although it did recognise that parts of the decision were “inelegant in its phraseology”. Mrs Mba appealed again.

The appeal to the Court of Appeal was fundamentally that the Employment Tribunal misstated the law and made a legal error. The key issue was whether in considering proportionality the Employment Tribunal was entitled to give weight to its finding that her belief that Sunday should be a day of rest and worship was not a core component of the Christian faith. The Court of Appeal concluded that it should not have given any real weight in the context of this case and it was wrong to suggest that the justification hurdle was less onerous because the group affected was relatively small. However the Court of Appeal still dismissed the appeal and agreed that the requirement to work Sundays was justified in this case. Although there were legal errors in the reasoning of the Employment Tribunal the ultimate conclusion was “plainly and unarguably right”. The legal error made no difference.

This case will be welcomed by employers who will be reassured that, provided they have clear contractual terms and treat their staff reasonably, it is possible to show that indirect discrimination can be justified. It is also a useful reminder that even if tribunals make legal errors, decisions which are plainly and unarguably right will not be quashed by appeal courts.

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