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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