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Sunday working



The Religion or Belief Regulations (now part of the Equality Act) state that employers cannot impose a provision, criterion or practice (PCP) which discriminates against a worker on the basis of their religion, unless they can justify it. In Mba v The London Borough of Merton, the Court of Appeal held that the requirement for Ms Mba to work on Sunday was a proportionate means of the Council achieving a legitimate aim.

What happened?

Ms Mba, a Christian, worked in a children’s home run by the Council. Three members of staff, who worked a rota system covering seven days a week, were required to be on duty at any one time. The Council initially accommodated Ms Mba’s request not to work on Sundays, but in 2009 it said she had to start doing so. She lodged a grievance which was unsuccessful and as she did not work any of the Sundays for which she had been rostered, she was given a final written warning in early 2010. When her appeal failed, she resigned at the end of May 2010 and claimed indirect discrimination on the basis that her employer had applied a PCP which discriminated against her as a Christian.

The tribunal identified the PCP as the requirement that staff must work their rostered Sunday shifts. Although this impacted on Ms Mba’s genuinely and deeply held religious belief that Sunday should be a day of rest, the tribunal held that this was not a core component of the Christian faith. The PCP was therefore a proportionate means of facilitating the effective running of the home by the Council.

In dismissing Ms Mba’s appeal, the EAT said that the tribunal’s comment that resting on Sunday was not a “core component” of Christianity reflected the evidence of an Anglican bishop that not all Christians felt unable to work on a Sunday. It concluded that the tribunal was right to find that the Council had a number of legitimate aims and that the PCP was a proportionate means of achieving them.

Although the Court of Appeal upheld the tribunal’s decision, it disagreed with the finding that working on Sundays was not a “core component” of the Christian faith (but for different reasons to the tribunal).

One of the judges held that it was not necessary to establish whether most Christians would be put at a particular disadvantage, as that would open the door to a quantitative test that was far too wide. Given that it was unacceptable for some Christians (including Ms Mba) to work on a Sunday, the tribunal should have found that applying this PCP put her at a disadvantage compared with other people who did not share her beliefs. Having done that, it should then have gone on to look at whether the Council could show “a proportionate means of achieving a legitimate aim”.

The other two judges held that, as it did not matter whether her views were widely shared or whether they constituted a core belief of any particular religion, the tribunal was wrong to refer to this factor as one that helped the employer. Despite the error in law, all three judges agreed that the tribunal’s decision was “plainly and unarguably right”.

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