The Court of Appeal (CA) has held in the recent case of Mba v Mayor and Burgesses of the London Borough of Merton, that the Tribunal and EAT were both right in their decision that the employer was justified in requiring a Christian employee to work on Sundays, despite her belief that it should be a day of rest.
Mrs Mba was a Christian who believed that Sundays should be a day of rest. She was employed by the London Borough of Merton (Merton) as a care officer in a home for children with disabilities or complex care needs. Merton operated a rota system and Mrs Mba’s contract of employment required her to work on Sundays. However for several years, under an informal agreement, Merton allowed Mrs Mba to have Sundays off. It became too difficult for this to continue and so Merton wanted Mrs Mba to work Sundays as per her contract of employment. Mrs Mba refused and subsequently brought a claim for religious discrimination claiming the requirement to work on Sundays was a provision, criterion or practice (PCP) that discriminated against Christians.
The Tribunal rejected Mrs Mba’s claim on the basis that Merton could objectively justify the requirement as a proportionate means of achieving a legitimate aim. The legitimate aim being the provision of a cost-effective service when faced with budgetary constraints and continuity of care for the children at the home.
In coming to their conclusion the Tribunal considered the fact that Mrs Mba’s belief about Sundays being a day of rest was not a core component of the Christian faith as some, but not all, Christians will not work on Sundays. Mrs Mba appealed the decision.
The EAT dismissed her appeal. The EAT held that although the Tribunal had not expressed itself very well, the Tribunal was simply trying to establish how many people shared Mrs Mba’s view about working on Sundays. It was not evaluating the importance of that belief. They found that this is relevant to considering proportionality because if a PCP affects almost all Christians, it will have a greater discriminatory impact than if it only affects a few. In it is view this should be taken this into account in applying the proportionality test.
Mrs Mba appealed to the CA.
The judges in the CA unanimously dismissed Mrs Mba’s appeal for differing reasons.
In respect of the group disadvantage element of the discrimination test, it was held that the Tribunal should have only looked at the impact on Christians holding the same beliefs as Mrs Mba, rather than looking at Christians in general as a group. As a result the Tribunal construed the comparative group too widely when it looked at group disadvantage.
Maurice Kay LJ held that, as a result of having identified the group that would be put at a disadvantage, they did not need to consider the number of persons affected when assessing proportionality. However Vos J and Elias J disagreed on this point, as they asserted that it is relevant whether a PCP interferes with a belief which affects a large number of people, because the more people it affects, the greater the impact of the PCP, which makes it more difficult to justify.
It is important to note that despite the differing reasons for their conclusions, the judges in the CA all agreed that the employer could justify the requirement for Mrs Mba to work on Sundays, as there was no other practicable way to run the care home. When assessing the question of proportionality, whether there are other means of achieving the same legitimate aim will be crucial. Further it was highly relevant here that Mrs Mba had knowingly signed a contract stating that she had to work weekends. This fact should not be overlooked.