A care worker's contract required her to work on Sundays.  After accommodating her wish as a Christian not to do so for two years (although the dispute about Sunday working started almost immediately after she started work), her employer required her to work on a Sunday from time to time as she was contractually obliged to do.  She argued that this discriminated against Christians, and hence her, on grounds of religion or belief.  The Tribunal in Mba v London Borough of Merton decided that the employer’s aim in seeking to ensure that all full-time staff worked on Sundays in rotation was legitimate, and was objectively justified.  The employer cited a number of reasons for its policy, including the need to provide a mix of male and females, and staff of varying seniority, on shifts; cost; and fairness between employees.

The claimant's appeal against the Tribunal's decision was dismissed by the Employment Appeal Tribunal earlier this year and now the Court of Appeal has confirmed the decision.

There was some concern in the Court of Appeal that the Tribunal, in balancing the discriminatory impact on the claimant against the reasonable needs of the Council's business, took into account their finding that Sunday being a day of rest is not a "core" Christian belief.  The Court of Appeal judges disagreed on whether it was right to say, as the EAT had done, that this was a valid comment on the degree to which Christians numerically would be affected - the greater the impact on the group, the more that has to be shown by the employer to demonstrate objective justification.  But ultimately, since the evidence showed that the Council had no viable and practicable alternative but to require the claimant to work on Sundays, demonstrating justification was never really in doubt.

The main areas where workplace policies can potentially be indirectly discriminatory on grounds of religion or belief are dress codes and rest days/time off for prayer.  Broadly, in both these types of situation, employers need to be careful to ensure they do not place staff at a disadvantage because of their religious beliefs, unless there are compelling reasons to do so.  If good business reasons do exist, employers will need to be able to articulate these clearly in the event of a challenge – as Merton was able to do in this case.