The trouble with religion, as John Lennon might one day have said, is that it means different things to different people. At one end of any religion will be those for whom their holy book, whatever name it takes, must be complied with to the letter even though it is probably thousands of years old and in places quite unsuited to 21st century living. At the other will be those who do not feel themselves any the less true to their faith through a pragmatic adopting of its tenets to the realities of their daily existence. Against such a wide range of observances, who is to say how “core” to a belief is, say, not working on a Sunday, and therefore how far an employer’s requirement to work on that day (or any other requirement which potentially cuts across religious preferences) is prejudicial to the employee in question?
Not the Employment Tribunal, the Court of Appeal has emphasised in Mba –v- London Borough of Merton, reported last week. Ms Mba was a care assistant at a London children’s home. She was rostered to work certain Sundays, refused to do so on religious grounds, was given a final written warning as a result and then resigned, alleging constructive dismissal and indirect religious discrimination.
The constructive dismissal claim failed but the indirect discrimination issue reached the Court of Appeal on the question of whether Merton could justify the requirement that she worked on a Sunday, i.e. to show it to be a proportionate means of achieving its legitimate operational aims in the running of the home.
The Employment Tribunal had concluded that this requirement was indeed proportionate, balancing its positive impact on the care providable at the home with the negative infringement of Mba’s genuine and sincere belief that her faith forbade working on Sundays. In considering the extent of that infringement the Tribunal bore in mind that (i) Merton had managed to accommodate Mba’s preferences for her first two years; (ii) her roster hours on a Sunday did not prevent her from attending Church on that day; and (iii) the prohibition on Sunday working, though one of the Commandments, was not a “core component” of the Christian faith.
The Court of Appeal was, in legal terms, unimpressed. What Merton had been able to do to accommodate Mba’s beliefs for her first two years was substantially irrelevant to its obligations going forward. Most significantly, however , it did not matter whether not working on a Sunday was objectively a core part of the Christian faith, or subjectively a core part of Mba’s interpretation of that faith. As soon as her belief in a particular stricture was established as genuine, it was no longer up to the Employment Tribunal to determine its “validity”, or whether as a peripheral, occasional or discretionary element of observance, it could more easily be overridden by the employer’s requirements.
Instead, the question for a Tribunal is simply whether the employer’s requirements were proportionate. The Court indicated that the number of others of the same faith who felt the same way within the workforce was not relevant to whether that rule was “core”, but nonetheless did affect the proportionality of the employer’s response. For example, if all the workforce declined to work on Sunday on religious grounds, then the requirement for 24 hour cover would dictate that some would nonetheless have to, despite their beliefs. If it were only one or two employees holding that view, it would be that much easier for the employer to accommodate them without that degree of compulsion.
Ultimately, despite the legal errors in the Tribunal’s reasoning, the Court of Appeal was of the view that it had been “plainly and unarguably right” to find that Merton’s requirement of Mba to work some Sundays was a proportionate means of achieving its indisputably legitimate aims. So despite her doing some very solid spade-work to assist future religious discrimination claimants, Mba’s claim still failed.