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Sunday working and religious discrimination

Last week the Court of Appeal decision in the case of Mba v London Borough of Merton was published. The appeal was brought by Mrs Mba, a practising Christian, who claimed that she had been discriminated against on grounds of religion because her employer had required her to work on Sundays.

The Court described Mrs Mba as having “a deep and sincere belief that Sunday is a day for worship and not for work”. She was employed as a care assistant at a children’s home run by the London Borough of Merton (the Council). The children in question had serious disabilities and complex care needs which necessitated 24/7 care.

Mrs Mba’s job description stated that she would be expected: “… to undertake duties outside normal working hours as required by the shift rota including weekends, Bank holidays and sleeping duties.” As a result of discussions between her and the Council’s management at the time of her appointment she believed that she was not contractually obliged to work on Sundays. In fact, the Court found that her contract required her to work on Sundays if needed.

The Council initially arranged the rotas so that Mrs Mba did not have to work Sundays. When they began to roster her for Sunday working, Mrs Mba raised a grievance. Her grievance was rejected and, after being given a final warning, she resigned and raised a Tribunal claim which included alleged indirect religious discrimination.

Mrs Mba was unsuccessful before an Employment Tribunal, partly because the Tribunal judged that Sabbatarianism was not a core component of the Christian faith. The Employment Appeal Tribunal upheld the decision. However, the Court of Appeal said that the Tribunal had taken the wrong approach. The Court recognised that, for some Christians, working on Sundays is unacceptable. It was also clear that Mrs Mba’s religious belief genuinely embraced this restriction. Therefore, it was theoretically possible for the Council to have indirectly discriminated against Mrs Mba on grounds of religion by requiring her to work Sundays.

The real issue in this case was whether the Council could show that the requirement was “a proportionate means of achieving a legitimate aim”, i.e. of being able to fill the rotas for the care home. Here the Court’s opinion was unanimous – the Council had established that there was no viable or practicable alternative way of running the care home effectively, meaning that Mrs Mba’s appeal was rejected.

Although the Council in this case was able to show that the requirement to work on Sundays was proportionate, the Court of Appeal’s decision has been received enthusiastically by religious groups. Andrea Minichiello Williams, a barrister and director of the Christian Legal Centre, which supported Mba, said: “… this judgment is a big step forward for proper treatment of Christians and is an important victory. At last the courts are beginning to demonstrate greater understanding of what it means to be a Christian. Many Christians will now be able to argue their employer must respect their rights of sabbath worship.”

Clearly an employer that has a policy or practice of requiring Sunday working will need to be alert to the potential impact on Christians who do not believe in working on Sundays. In this situation, the employer should give proper consideration to whether the needs of the employee can be accommodated. If this is not possible, because of the requirements of the business for example, an employer can seek to defend a claim of indirect religious discrimination by demonstrating that the requirement to work some Sundays was a proportionate means of achieving a legitimate aim.

MBA v London Borough of Merton [2013] EWCA Civ 1562.

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