Yet again, the intersection between employment law and religion has been in the headlines following the Eweida case earlier this year. The latest case, Mba v London Borough of Merton , considered whether it was discriminatory for an employer to insist upon a Christian employee working on Sundays.
Mrs Mba was employed as a full-time employee by the London Borough of Merton (LBM) at a children’s home where the children required 24/7 care. Full-time employees at the children’s home were contractually required to work on two of three weekends over a three-week period. Mrs Mba was a Christian who strongly believed that Sunday was day for worship and not for work. LBM had allowed Mrs Mba not to work on Sundays for two years. However, things changed with another employee leaving and LBM finding that it needed to roster Mrs Mba to work on Sundays. Mrs Mba refused to work on Sundays and LBM undertook disciplinary action against her. She subsequently resigned and claimed constructive unfair dismissal and indirect discrimination on the grounds of her religion or belief. She claimed that the requirement to work on Sundays amounted to a provision, criterion or practice (PCP) that discriminated against Christians.
Mrs Mba’s case of constructive unfair dismissal was rejected, leaving just the indirect discrimination claim. Indirect discrimination occurs when there are acts, decisions or policies put in place which apply to everyone, but which in practice have the effect of disadvantaging a group of people with a particular protected characteristic – in this case, Mrs Mba claimed that the requirement to work on Sundays disadvantaged Christians. There is a defence to indirect discrimination claims where the act, decision or policy can be objectively justified.
The Employment Tribunal considering the claim found that the PCP did put Christians at a particular disadvantage; but that it was a proportionate means of achieving LBM’s legitimate aims. Therefore, Mrs Mba could lawfully be required to work on Sundays. The Employment Tribunal also said that Mrs Mba’s belief that Sunday should be a day of worship was ‘not a core component of the Christian faith’ because not all Christians adhered to this.
Mrs Mba appealed against this decision, arguing, among other things, that the Tribunal had incorrectly made judgment on what was ‘core’ to Christian beliefs.
The Employment Appeal Tribunal (EAT) held that the Tribunal had been entitled to conclude that the requirement was justified. The EAT also said that the Employment Tribunal had not incorrectly made comment on what was ‘core’ to Christian belief. The Employment Tribunal was commenting on the degree to which Christians generally would be affected by the PCP (a quantitative assessment), not on what was important to the Christian faith generally. Mrs Mba appealed against the decision of the EAT to the Court of Appeal.
The Court of Appeal said that the Employment Tribunal should not have taken into account that Mrs Mba’s desire not to work on Sundays was not a ‘core component’ of the Christian faith when considering if the PCP was justified. The assessment that matters was whether Mrs Mba had a sincere belief which was held by some Christians (i.e. it is not necessary to establish a significant group disadvantage), and whether that belief was sincere.
However, the Court of Appeal was unanimous in holding that, despite the error of law, the Employment Tribunal’s original decision was right. Once LBM had established that there was really no viable or practicable way of providing the service other than by requiring all employees to work on Sundays, Mrs Mba’s claim failed.
The decision in the case is a relief to employers, especially as Mrs Mba was contractually obliged to work on Sundays. That said, we find that employers often overlook the potential for discrimination on the grounds of an employee’s religion or belief. Employers would be wise to review their policies and ensure managers are aware of their responsibilities and how things can go wrong, particularly as the number of cases seems to be increasing in this area.
Do you need help with an Equal Opportunities policy or do you have a situation you need to talk through? We can help – please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).