Christian who refused Sunday work was not constructively dismissed – Richard Wayman

10 January 2013 by

300px-Duccio_di_Buoninsegna_014Mba v London Borough Of Merton (Religion or Belief Discrimination) [2012] UKEAT 0332/12/1312 (13 December 2012) – Read judgment

The Employment Appeal Tribunal (EAT) has dismissed the appeal of a Christian care worker against the decision of an Employment Tribunal that she was not constructively dismissed as a result of her refusal to work on Sundays.

Mr Justice Langstaff, President of the EAT, made it clear in his judgment however that anyone hoping either for ‘a ringing endorsement of an individual’s right not to be required to work on a Sunday’ or an employer’s right to require it would be disappointed, as ‘no such broad general issue arises’. [3]

Day of rest

In 2007, Mrs Mba was employed by the London Borough of Merton as a care worker in a home for seriously disabled children. The home operated 24/7 by means of a shift rota which required staff to work four weekend shifts every three weeks. From the outset, the Claimant refused to work on Sundays, and initially the Respondent made informal arrangements to accommodate her, although the Employment Tribunal found that this did not amount to a promise that she would never have to work Sunday shifts.

Following internal discussions, the situation came to a head during 2009 when the Claimant raised a grievance, which was rejected, and was told that she would have to work on the normal rota. She did not work her rostered Sunday shifts, and in 2010 was subject to disciplinary action leading to a final written warning. Her appeal against the warning was also rejected and she resigned five days later.

Protection of religion and belief

As the Equality Act 2010 was not yet in force, the applicable law was contained in the Employment Equality (Religion or Belief) Regulations 2003. Section 3(1)(b) of the 2003 Regulations defines indirect discrimination on the grounds of religion or belief as occurring where:

 A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but—

(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,

(ii) which puts B at that disadvantage, and

(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.

As a local authority, the Respondent was also subject to section 6(1) of the Human Rights Act 1998 which renders it unlawful for a public authority to act in a way which is incompatible with a Convention right, although the EAT found that in this case the Article 9 right to freedom of religion ‘adds nothing’ to the approach to be taken in applying the 2003 Regulations. [16]

The Tribunal

The Claimant argued before the Employment Tribunal that in adopting the provision, criterion or practice (PCP) of requiring weekend working, she was subject to indirect discrimination on the grounds of her religion. In reaching its decision, the Tribunal applied the test of proportionality, which requires that there should be a legitimate aim, that the PCP be necessary to achieve that aim, and that it should be a proportionate means of doing so.

On the facts, the Tribunal held that in specifying that a) staff of both genders be available, b) staff left in charge should have sufficient experience, and c) there should be continuity of care wherever possible, the Respondent’s aim was legitimate, and that requiring staff to work Sunday shifts in line with their contracts was a proportionate means of achieving that aim, and dismissed Mrs Mba’s claim for constructive dismissal.

Three grounds of appeal

The Claimant appealed on three grounds, firstly that the Employment Tribunal had been wrong to hold that not working on Sundays was not a core component of the Christian faith, secondly that the Tribunal had failed to apply the proper test, one of ‘anxious scrutiny or intensive review’, and thirdly that it should have placed the onus on the Respondent to justify the proportionality of the PCP, rather than the Claimant.

On the second ground, the EAT found that the Tribunal had not misdirected itself in law, that it was clearly entitled to reach the conclusions that it did, and that no case of perversity could be made out with respect to its findings of fact. [36] Furthermore it held that whether a PCP is justifiable is a matter for the Tribunal or Court, and not for the employer. [37]

As to the third ground, the EAT found that the Tribunal had not required the employee to justify the PCP, but that that burden was rightly on the employer. [50]

The first ground of appeal raised the most interesting points. Here the Claimant submitted that the Tribunal had erred in taking it upon itself to identify what was and was not a ‘core part’ of the Christian faith, in the sense in which the phrase was used in the judgment of Lord Neuberger MR in Ladele v The London Borough of Islington [2010] IRLR 211 (a case which is to be decided in the European Court of Human Rights this coming Tuesday). It was argued that the Tribunal had thereby taken into account an inappropriate factor in conducting its proportionality analysis.

Langstaff J stressed the importance of reading the Tribunal’s decision as a whole, and while acknowledging that this part of the decision was not well expressed, concluded that the Tribunal was not seeking to making a qualitative determination on the content of matters of faith. Rather, as the context and the cases cited made clear, the Tribunal was making a quantitative assessment as to the number of Christians who might be affected by the PCP. As many Christians are prepared to work on Sundays, it was appropriate for the Tribunal to consider this in weighing the extent of the discriminatory impact of the PCP as part of a proper assessment of proportionality, and thus there was no error of law. [48]

The EAT dismissed the appeal on all three grounds.

Richard Wayman is reading law at Magdalene College, Cambridge with a view to coming to the Bar after a previous career in management

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  1. John D says:

    Andrew: as you know, there is an old saying: “It takes two to tango”. From memory, I do not think it was just that she refused to do the work allocated to her but that she was highly objectionable about it towards her employer and work colleagues. She apparently was constantly criticising their behaviour, dress, language, etc. and constantly passing herself off as some sort of semi-divine individual. My guess is that the truth lies somewhere around the fact that they just got sick of her stupid and stuck-up attitude and used the issue to get rid of her. This pyrrhic “victory” of Eweida and the unseemly conduct of her fellow claimants will probably lead to a situation where employment lawyers start advising employers to be very careful about employing people with strong religious beliefs. Paradoxically, this “victory” may well lead to a situation where it becomes much harder for religiously motivated people to gain employment. After all, just how many employers would want to go through all this nonsense?

  2. Andrew says:

    If Ms Ladele had taken on more marriages and left the cp work to her colleagues that would not be an extra burden on them, John D. Other authorities managed. Islington treated her horribly.

  3. Peter Turtill says:

    Thank you for an interesting and informative series of posts all who posted. I have updated my understanding and fear of religious freedoms:-)

  4. John D says:

    Would a truly commited Muslim apply for a job serving alcoholic drinks in a bar? I think not. If they do and subsequently decide they no longer wish to do the job, their course of action is obvious: find another job which is more agreeable to their personal beliefs. There was another case over the course of the last year where a cook for a police force decided they should not be made to work wirth non-halal meat products. It was subsequently found that he regularly cooked and consumed bacon and pig products while at work. Needless to say, he lost his case – and quite right too! Ladelle was another one who wanted her colleagues to take on the role of officiating at civil marriage ceremonies with gay and lesbian people so she could continue to draw her full salary while imposing an extra work burden on her colleagues. How can anyone think this is reasonable or fair?

  5. Andrew says:

    Find religion, find another job. Don’t burden your colleagues because you’ve changed your mind.

    1. Peter Turtill says:

      The rulings on Tuesday made me take stock. I am of an age where religion was was an excuse for anything. We live in a multi-cultural society where many people have no religion at all. Belonging to certain belief system is not as important as it used to be.

  6. Peter Turtill says:

    I agree James. However the employment exchange or whatever they are called these days may expect a muslim to accept a job that entails serving alcohol. I really do not know the answer to this isssue of religion and discrimination. I can imagine a situation where a disgruntled bar man suddenly finds religion though. It would seem this legislation could be abused but there again, what do I know:-)

  7. James Wilson says:

    Peter the answer is that I can’t really imagine anyone applying for a job as a barman if they objected to serving alcohol. But it would be ludicrous if a barman suddenly became persuaded for religious reasons that serving alcohol was wrong, and then be able to demand that the employer allow him to serve only orange juice, leaving the rest of the bar staff to deal with everything else. The answer is for any exception to be agreed up front by the contracting parties themselves, not for the state to enforce a change of the contract after the event.

    1. Andrew says:

      James: that would be preposterous but at least it would not inflict extra work on the barman’s colleagues which is what this selfish woman was trying to do.

      By contrast, I think that whatever the ECtHR makes tomorrow of the law, Ms Ladele was badly treated by Islington who could have spared her conscience (as other districts did for existing registrars) by allocating her more marriages and no c.p ceremonies. I would like to believe that the forthcoming Marriage Bill will protect registrars now in post in that manner but frankly I doubt it.

  8. Peter Turtill says:

    Yes it is wrong to take a job requiring working hours that do not suit an individual. I have no experience of the law at all and I have no religion. However I find it discriminatory to expect a muslim, jew or christian to work on their holy day. It does appear this may still be the case and the Judge was commenting upon the strength of this woman belief and questioning if her religious beliefs were really that strong. I believe this would or could equate with a muslim being forced to serve alcohol or pork and certainly with a devout jew being required to work on Saturday. But as I stated earlier I am old fashioned and I may just not be up to speed regarding religious issues.

  9. John D says:

    Peter: there is no good reason that people holding irrational beliefs (from the perspective of rational people) should be uniquely privileged such that they dictate their working times to their employers and worker colleagues. If religious believers are so determined to not work on certain days they should not apply for jobs that require such work patterns. It seems to me that this claimant has deliberately created this situation (no doubt with the connivance of the Christian Legal Centre) as part of her extremist religious activism. I dare say she is even now being feted by her religious accomplices despite having lost the case.

  10. Andrew says:

    The reason, Peter, is that it would make non-religious people work more of their weekends.

    Religious observance is one of many ways of spending your non-working time. There are many others. No one way trumps any other way; all are entitled to equal respect.

    So everyone in the same workplace doing the same job is entitled to the same share of their Saturdays or Sundays or nights free – which means everyone must work the same share of them. If you don’t want to work any Sunday you have no business taking a job which of necessity requires Sunday work. It is not rocket science.

  11. Andrew says:

    Peter: to make non-Christians or non-Sabbatarians work more Sundays so that this lady did not have to work any would be religious discrimination against them . . . wouldn’t it?

    When the dispute arose this lady had the gall to name two of her colleagues who could be expected to work the Sundays which she did not want to. To which I can only quote Hood:

    Alas for the rarity
    Of Christian charity
    Under the sun!

    More widely: there is a correlation between support for strong and well-enforced laws against discrimination and support for more and better public transport, including on Sundays. And buses and trains don’t drive themselves, do they?

    1. Peter Turtill says:

      Andrew: I cannot comment upon the actions of the lady involved here regarding her colleagues but it still seems strange to me that a cosmopolitan country such as the UK cannot run without causing religeous people to work on their holy day once a week.

  12. Andrew says:

    Come on, Peter, if you are Jewish but you take a job that involves Saturday working, you take your share. (I understand that Muslims work during Ramadan so that is not an issue.)

    It’s called contract and we all learnt about it a long time ago.

    If you are excused other employees have to do more Saturdays. If you can tell me how that is fair I will be interested.

    The same applies – see my previous post – to childcare commitments. If you take the job you must work the shifts and arrange for childcare. You would not expect your colleagues, no matter how reliable and trustworthy, to come to your home and look after your children while you are working shifts – why would you expect them to work extra shifts while you are at home with the children?

    I know it is hard, but you cannot dump your problems on your colleagues.

    1. Peter Turtill says:

      I accept that if a person takes a job that requires working certain hours that is part of the contract. However I would have thought that was an unenforcible contract but as I said, I am awfully old fashioned.

  13. ivan says:

    @Turtill, suppose a person appiles for and accepts a job as a train driver, or a school teacher, or a check-out assistant, or whatever, and then says that his religion requires him to stop working for 15 mins 5 times a day, for prayers, and his employer must ensure he is not required to do anything during any of those 15 minute periods. Now do you understand the ruling?

    1. Peter Turtill says:

      I must be awfully old fashioned but I still do not understand the ruling to be anything less than religeous discrimination. Apparently this is now allowed and I am wrong.OK.

  14. Peter Turtill says:

    I am surprised by this ruling. I would also be surprised if a Muslim was expected to work during Ramadan or a Jewish person was expected to work on a Saturday. There must be something I do not grasp about this ruling.

  15. I can never understand why such cases arise. Surely it should be agreed between the parties that shifts will be worked as per the exigencies of the job. Any job candidate not so agreeing should not be engaged. Simples!

  16. John D says:

    I am pleased that this latest escapade of religious activism has been shown the door.
    I suspect outfits like the Christian Legal Centre are behind this US-style attempt to get their way, regardless of how much trouble and inconvenience they cause others. If this woman was really so motivated not to work on Sundays, why did she not just go and get a Monday to Friday job somewhere else? Or was the lure of a hefty compansation payout – yet again – the main attraction, as with all of the similar cases before the European Court at present?

  17. Andrew says:

    What is it with people like this?

    it is particularly unattractive that the Claimant apparently named others who, she said, could have done the Sunday shifts which she declined. Apparently her colleagues’ Sundays were unimportant compared to hers. If she named them because they were of some other persuasion that was an invitation to the employer to discriminate on the grounds of religion – which was, apparently, fine as long as it was not against her.

    I suggest that whether it is gender, race, religion, or age, there is one simple, fair and non-discriminatory rule. In any line of work which requires night or weekend work:

    1. Everyone is rostered for an equal share of every sort of shift so fart as that is numerically possible; if you get one more than others this quarter you get one less next.

    2. Staff are then free to swap to the limits of what is consistent with health, safety and the Working Time Directive.

    3. But free means free: not expected, required, pushed, bullied, guilt-tripped, or made to feel that they are not team-players if they don’t want to.

    4. So if A who has children asks B who has none to take her Saturday and B says No A must not ask Why not, What are you doing, Why won’t you help when my child-care has fallen through, or anything of the sort.

    If that is not right, why is it not? Does religion trump child-care needs or vice-versa?

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