In 2013 we had the long awaited decisions in the combined appeals brought in the cases of Eweida and others v The United Kingdom. These comprised the judgment of the European Court of Human Rights, applying the right to freedom of thought conscience and religion contained within Article 9 of the European Convention on Human Rights (ECHR) to four work-related scenarios complaining of religious discrimination. In the recent case of Mba v the Mayor and Burgess of the London Borough of Merton the Court of Appeal had to grapple with the tricky issue of how to reconcile Article 9 and the Strasbourg Court’s judgment, which focuses on individual disadvantage, with our domestic legislation on indirect discrimination which is underpinned by the concept of group disadvantage.
Ms Mba is a Christian who believes that the Sabbath is sacred. She worked as a care officer in a home for children with disabilities and complex care needs. Although her contract required Sunday working, for the first two years of her employment an informal arrangement ensured that this demand was not placed on Ms Mba. However, as is not uncommon in the working environment particularly with the recent economic circumstances, resource became more difficult and rostering to avoid her working on Sunday became harder. Merton Council informed Ms Mba that she would need to work Sundays in future, following which she resigned and brought a claim of religious discrimination. The basis of her complaint was that the requirement to work Sunday indirectly discriminated against her because of her religious beliefs.
Appeal Court decision
Ms Mba lost her case both in the Employment Tribunal and her subsequent appeal at the Employment Appeal Tribunal. She pursued a further appeal to the Court of Appeal.
The Council had accepted that requiring all staff to work Sundays put the Claimant, and would put people who shared her religious belief, at a particular disadvantage. The Council argued, however, that its practice of requiring Sunday work was not indirectly discriminatory because it was justified. The Tribunal had accepted that the Council had a legitimate aim for its practice, namely ensuring there was an appropriate gender balance and seniority mix on each shift, while providing a cost-effective service in the face of budgetary constraints, fair treatment of all staff, and continuity of care for the children. What was in issue was whether the practice of requiring Sunday work was a proportionate means of achieving that aim.
Ultimately the Court of Appeal rejected Ms Mba’s appeal because the Tribunal’s decision that the Council’s practice was justified was ‘plainly and unarguably right’. The Council had established that there was no viable or practicable alternative way of running the care home effectively other than by requiring all staff to work on Sundays in accordance with their contracts of employment. That being the case, the only conclusion open to the Tribunal was that the Council’s practice was justified.
Having said that, the appeal court judges did rule that the Tribunal (and the EAT) had applied the law incorrectly when reaching their conclusions. Although this made no difference to the outcome of the appeal, it is particularly interesting to note that the Court of Appeal said the Tribunal was wrong, when assessing proportionality, to have taken into account that the claimant’s belief was not a ‘core component’ of the Christian faith. As was noted by the EAT, a Tribunal has no right to evaluate how important a belief is. What was in issue here, though, was whether it was relevant to proportionality to take into account how many of those who adhere to a particular faith believe in a particular aspect or requirement of it. The Court of Appeal held that this was irrelevant in this case and should not have been taken into account.
The three appeal judges had different reasons for reaching this conclusion. One felt the issue of the number of Christians who believed in not working on a Sunday was immaterial because the question was not about the impact of the requirement to work Sundays on Christians as a whole, but the potential impact on those who shared the Claimant’s more specific Sabbatarian belief. The other two judges took a somewhat different approach. They felt that, looking at the Equality Act 2010 in isolation, it would be appropriate to the proportionality test to ask how many people who are adherent to a particular faith believe in a particular aspect or requirement of it. However, because the requirement to work Sundays affected the claimant’s right under Article 9 of the ECHR to manifest her religion or belief, it was necessary to interpret the Equality Act so as to be consistent with the ECHR as applied in the Eweida case. As Article 9 is not concerned with group disadvantage, this meant focusing on the effect of the employer’s practice on the claimant herself, rather than the extent to which others might similarly be affected. That being the case, it was not appropriate for the Tribunal to take into account that the Claimant’s beliefs were not widely shared as a factor supporting the employer’s justification argument.
Being supported by the majority, the interpretation of the Equality Act to give effect to Article 9 represents the judgment of the Court of Appeal. However, the point is made in the judgment that Article 9 was directly engaged in Miss Mba’s case because the Council is a public body. What is not entirely clear is whether the two judges would have reached the same conclusion on the interpretation of the Equality Act if the claimant had worked for a private sector employer. But even if, in some cases, it may still be relevant to take into account whether a belief is widely held, to gauge how many people are affected by a policy, the significance of that factor will depend on the particular facts of the case in question. Proportionality involves demonstrating that an employer has struck the right balance between the discriminatory impact of the relevant practice and the organisation’s requirements. If a belief is widely held, that may mean that a greater number of employees will be adversely affected by an employer’s policy. On the one hand, the greater the disadvantage is likely to be, the harder an employer may have to work at the justification to show that its importance outweighs the discriminatory impact. On the other hand, as was pointed out by all three judges in this case, the fewer employees that are affected by a policy, the easier it may be for an employer to accommodate those employees in a way which is compatible with its business objectives.
Issue for employers
The apparent difficulties in the reconciliation of the earlier Eweida Judgment on Article 9 and the Equality Act, have to be considered against the practical ramifications for an employer.
If an individual raises objection to working arrangements or any contractual provision, and does so on the basis of it infringing or conflicting with an aspect of their religion or belief, careful handling is always required. Due regard and of course respect needs to be had to the individual's personal views and opinions. The fact that an individual’s approach to or interpretation of religious tenets or strictures may appear to be especially stringent is not a particularly relevant consideration. Rather than disputing or arguing about the impact of a policy, a careful attempt should be made to look at alternatives in seeking to reconcile the individual’s concern with the organisation’s needs. Alternative options should be explored and if, ultimately, the individual's needs cannot be accommodated, an employer should tread very carefully to ensure that it can put forward a very strong business case as justification for having to hold their position or require compliance and demonstrate that they are unable to allow the flexibility sought.
Mba v the Mayor and Burgess of the London Borough of Merton (2013) EWCA Civ 1562