Can a Christian care worker be required to work on Sundays? In February 2012 I reported the employment tribunal decision in the case of Celestine Mba v Merton Council. The decision went against Ms Mba and she was clearly aghast at what she regarded as intolerance against her own faith in what she considered to be a Christian country. It is therefore no surprise that the case subsequently found its way to the Employment Appeal Tribunal. According to the EAT judgment in Mba v the Mayor and Burgesses of the London Borough of Merton the answer can be "yes, there is a requirement to work on Sundays" in certain circumstances. Well, let’s face it, you didn’t expect an unequivocal decision one way or the other in the fields of employment and discrimination law did you?!
Ms Mba was a care worker in a children’s home. Her contract provided that she could be required to work on Sundays but the employer accommodated her wish not to do so for two years. The Authority then began to rota her for Sunday working as a result of understaffing. She objected on the basis that the requirement discriminated against Christians, including her, on the ground of her religious belief and was therefore contrary to the protection provided by the Employment Equality (Religion or Belief) Regulations 2003 (now incorporated within the Equality Act 2010). Her refusal to work on Sundays led to a final written warning and she resigned on the basis that the employer had imposed a provision, criterion or practice (PCP) that discriminated against Christians.
The judgment of Mr Justice Langstaff (President of the EAT) begins with a recital of the fourth Commandent: "Remember the Sabbath day to keep it holy". However he observes that although the fourth Commandment is not enshrined in law, the Regulations, when introduced, mean that it is no longer open to an employer to require staff to work on a Sunday and thereby disadvantage those who are Christian unless the employer can show that the requirement is objectively justified. The same protection could apply in respect of Muslims on a Friday and Jews on a Saturday.
He made clear that no definitive statement of law can be applied:
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. The questions raised must be determined in the specific circumstances of this particular case alone.
When determining whether the action of the employer is justifiable it is necessary to apply an objective balance between the discriminatory effect of the requirement and the reasonable needs of the employer. That requires consideration of the discriminatory effect on the affected group as a whole, in this case Christians.
It followed that the key consideration was whether not working on a Sunday is a core component of the Christian faith and what that means. However, the Court must not be in the position of judging what constitute the tenets of faith. Rather, the court should evaluate how important the belief is, so that it may described as "core". It must also consider how many people who are adherent to the faith believe in that particular aspect or requirement of it. The distinction is subtle but important.
Mr Justice Langstaff encapsulated the approach as follows:
Whereas [the Court] has no right to determine matters of faith qualitatively, the weight to be given to the degree of interference with religious belief of a certain kind will inevitably differ depending upon the numbers of believers who will be affected by the particular PCP concerned. If, for instance, on the evidence before a Tribunal, it is shown that a minority of those who ascribe to a particular belief have a specific view of that which it requires them to do in particular circumstances, then a PCP which affects the whole group, but only that small part of the group of believers adversely, will be of lesser weight than a PCP which adversely affects every one. To illustrate, if a PCP affected virtually every Christian to a given extent, it would have a greater discriminatory impact than if the same measure affected only a much smaller number of Christians to that extent. The greater the discriminatory impact on the group as a whole, the more that has objectively to be shown by the employer to demonstrate that the PCP is necessary, and proportionate.
When the Tribunal goes on to say that as much was accepted [the statement of a Bishop], it caused us to ask to see a copy of the Bishop’s statement, which had been admitted into evidence and accepted by the Tribunal without requiring the Bishop to attend. He said:
“Some Christians will not work on the Sabbath (except for mercies), others may work only in an emergency.”
That is evidence that many Christians will work on the Sabbath.
It followed that although the tribunal had not ben entirely clear in its approach to the key issues, its conclusion was correct, viz. that the employer had established a legitimate aim and a PCP which was justified in achieving that aim. Accordingly Ms Mba’s appeal failed.
As I have commented on many occasions, the overlap between religion and legal process is not a comfortable one and, as emphasised in this case, there are no clear guidelines. It is therefore vital for employers that legal advice is obtained as soon as any such issues are raised.