Is a Christian employee discriminated against by being required to work on Sundays? Not always, according to the Employment Appeal Tribunal in the case of Mba v Mayor and Burgesses of the London Borough of Merton [2012]. In this case an employer was held to have not indirectly discriminatory against a Christian employee by requiring her to work on Sundays.

Background

The employee (Ms Mba) was an employee of the London Borough of Merton (“Merton”) and a residential care worker at a children’s home that was open seven days a week. The home provided residential breaks for children with serious disabilities and a rota system was in operation which required staff to work one seven day week, one regular week (five days on, two days off) and one short week (three days on, four days off).

Ms Mba was a Christian and believed that Sunday was a day of rest. She therefore did not wish to work on Sundays due to her religious belief. However, Ms Mba’s contract stipulated that she could be required to work Sundays. Whilst Merton sought to accommodate her wishes for two years, there was no promise that it would be a permanent arrangement. Eventually, Merton insisted she work on occasional Sundays. Ms Mba refused, and following a final written warning, resigned. She brought a claim for indirect religious discrimination.

Tribunal Decision

A Tribunal concluded that Merton’s requirement that Ms Mba work occasional Sundays was objectively justified. The Tribunal’s view was that the requirement was a proportionate means of achieving Merton's legitimate aims. The Tribunal stated that it was a legitimate aim for Merton to ensure that those working on Sundays were of an appropriate gender balance; there was an appropriate mix of seniority; the service was run cost-effectively in light of limited budget; other staff were treated fairly; and that there was continuity of care for the children.

Whilst the Tribunal realised that this impacted on Ms Mba’s religious beliefs, it had noted that Merton had made efforts to accommodate her wishes for two years. It also noted that Merton was still prepared to arrange shifts to enable Ms Mba to attend church.  The Tribunal did however say that Ms Mba’s belief regarding Sunday working was not a core element of the Christian faith, and that some, but not all Christians will not work on a Sunday.

Ms Mba appealed to the Employment Appeal Tribunal.

EAT Decision

The EAT upheld the Tribunal’s decision stating that the Tribunal had struck a proportionate balance between the needs of Merton and the discriminatory impact on Ms Mba.

However, the EAT stated that the Tribunal “did not express itself well” when it stated that Sunday working was not a core element of the Christian faith.  The reference to being a “core element” could be misinterpreted as meaning that the Tribunal had taken it upon itself to evaluate how important the belief was.  This would not have been permissible.  However, the EAT was satisfied that this was not what the Tribunal had done.  Rather, the Tribunal had, quite correctly, been referring to the number of people who shared Ms Mba’s belief, in the context of considering the discriminatory impact on Christians generally. The EAT noted that “if a PCP [ie a provision, criterion or practice] affects virtually every Christian, it will have a greater discriminatory impact than a measure only affecting a small number of Christians. Given this, the Tribunal was entitled to take into account the fact that many Christians will work on Sundays when applying the proportionality test.”

Comment

It is worth noting the EAT’s comments at the outset of its Judgment:

"We should make it clear at the outset of this Judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer's freedom to require it on the other, that they will both be disappointed. No such broad general issue arises.”

Therefore, we must be wary about drawing any broad principle from this Judgment other than the fact that it may be possible, depending entirely on the individual circumstances, for an employer to objectively justify indirect discrimination. Whilst in this case Merton was able to justify its approach, not all employers will be able to.

A more interesting issue is the extent to which indirect discrimination should properly be seen as being concerned with group disadvantage, rather than simply disadvantage to an individual.  In this case the EAT noted that, in assessing whether a provision, criterion or practice is justified, what has to be considered is not its discriminatory impact in respect of a given claimant, but the discriminatory impact of that provision, criterion or practice in respect of a group (sharing his or her beliefs) taken as a whole. This is in line with its comments noted above about taking into account the number of Christians as a whole who might be affected by a Sunday working rule.

These comments warrant particular attention in light of the decision of the European Court of Human Rights (ECtHR) in Eweida and others v United Kingdom [2013] ECHR 37. Ms Eweida’s claim came about after she was prevented from wearing a cross visibly at work by her private sector employer.  When her claims of religious discrimination based on UK law failed, she complained to the ECtHR that UK law (in the way it was interpreted by the courts in her case) had failed to protect her right to manifest her religious . Significantly, in upholding her complaint, the ECtHR focused on Ms Eweida’s right to personal expression of her faith, rather than the extent to which others might be similarly disadvantaged.

The ECtHR’s ruling in Eweida means that, in future, it is likely that those who claim indirect religious discrimination will no longer have to show that there was an identifiable group of people who were, or would have been, disadvantaged by the policy that is being challenged.  To trigger the employer’s obligation to justify a rule or policy it will almost certainly be enough for an individual to show that they were personally disadvantaged by the relevant policy, without having to prove that others were similarly affected.  What is less clear, however, is whether the extent of any group disadvantage is still relevant in considering if the rule or policy is justified.  Although in Mba the EAT seemed to suggest that in assessing justification it is appropriate to take into account the number of people who share the complainant’s belief, this approach could well be questioned in future cases in light of the ECtHR’s decision in Eweida.  

Link to judgment in Mba v London Borough of Merton, CA, December 2012

Link to our briefing on Eweida and others v United Kingdom [2013] ECHR 37