Christian care worker loses Sunday working discrimination appeal – Richard Wayman
5 December 2013
Mba v London Borough Of Merton  EWCA Civ 1562 – Read judgment
The Court of Appeal has dismissed the appeal of a Christian care worker against the decision of the Employment Appeal Tribunal (EAT) that a requirement that she work on Sundays indirectly discriminated against her on the grounds of religion or belief.
The Court unanimously found that although both the EAT and the Employment Tribunal (ET) had erred in law, the ET’s decision was ‘plainly and unarguably right’ , and applying the principle in Dobie v Burns International Security (UK) Limited  ICR 812, the errors did not make any difference to the outcome.
Mrs Mba’s claim was for constructive dismissal and indirect religious discrimination under the Employment Equality (Religion or Belief) Regulations 2003 arising from her refusal to work on Sundays at the disabled children’s home at which she was a care worker. The Tribunal rejected her contractual claim and found that the Council’s ‘provision, criterion or practice’ (PCP) in requiring Sunday working was justified under Regulation 3(1)(b) as a proportionate means of achieving the legitimate aim of ensuring 24/7 care for the children.
The key passage of the ET’s decision was paragraph 88:
However, in terms of the degree of disadvantage to her, we bear in mind the following particulars:
(i) [the Council] did make efforts to accommodate her in this respect for two years;
(ii) [the Council] was in any event prepared to arrange the shifts in a way that enabled her to attend church to worship each Sunday; and
(iii) Her belief that Sunday should be a day of rest and worship upon which no paid employment was undertaken, whilst deeply held, is not a core component of the Christian faith
Mrs Mba appealed to the EAT the grounds that the Tribunal had taken into account irrelevant factors in its proportionality analysis, and in particular had inappropriately taken it upon itself to decide the ‘core components’ of the Christian faith. In dismissing the appeal, Langstaff J found that Article 9 of the Convention ‘adds nothing’ to the approach to the 2003 Regulations , and held that while in paragraph 88 the Tribunal was ‘inelegant in its phraseology’ , it had correctly applied a quantitative rather than qualitative test to assess the number of Christians impacted by the PCP.
The Court of Appeal
The Court of Appeal unanimously held that sub-paragraphs (i) and (ii) were indeed irrelevant to the assessment of proportionality.
The Court held that the Tribunal should not have considered whether the claimant’s belief was a ‘core component’ of her religion in sub-paragraph (iii), but differed in their reasoning on the role of quantitative considerations in assessing proportionality. Their Lordships also disagreed on whether, under s.3 of the Human Rights Act 1998, the Regulations could be read compatibly with Article 9 (which cannot be invoked directly before an Employment Tribunal as it lacks statutory jurisdiction).
A Quantitative Element in Group Disadvantage?
In the minority, Maurice Kay LJ laid emphasis on the test in Regulation 3(1)(b)(i) as one of ‘group disadvantage’, finding that the ET had ‘opened the door to a quantitative test on far too wide a basis’ . He held that the Tribunal should have found that a Sunday working PCP satisfied Regulation 3(1)(b)(i), and focused on the ‘real issue’ of proportionality. He concluded:
I am not convinced that there necessarily is [a quantitative element], over and above the requirement of group disadvantage in the limited sense to which I have referred. 
His Lordship reached his conclusions without recourse to Article 9, and rejected the submission that the decision of the European Court of Human Rights in Eweida v United Kingdom  IRLR 231 did anything to strengthen Mrs Mba’s case, holding that:
I prefer not to resort to reading down, for ECHR reasons, a domestic provision which is compliant with the EU Directive from which it is derived. I am not convinced that giving regulation 3 its natural meaning would involve a breach of Article 9. 
Article 9 and Justification
For Elias and Vos LJJ, however, there would have been scope for taking into account whether a belief was a ‘core component of the Christian faith’ if the case had solely concerned domestic indirect discrimination law.  However if Article 9 was engaged, it would render such a consideration irrelevant for the purposes of justification.
Lord Justice Elias, with whom Lord Justice Vos agreed, went on to state:
I see no reason why the concept of justification should not be read compatibly with Article 9 where that provision is in play. In that context it does not matter whether the claimant is disadvantaged along with others or not, and it cannot in any way weaken her case with respect to justification that her beliefs are not more widely shared or do not constitute a core belief of any particular religion. 
Their Lordships therefore found that it was precisely the application of Article 9 to the case, rather than a quantitative approach, which rendered paragraph 88(iii) of the Tribunal’s decision inappropriate in assessing the proportionality of the Council’s PCP.
What Difference Does It Make?
Despite successfully establishing errors of law in both the ET and EAT, however, the Claimant’s appeal was unanimously dismissed. Their Lordships found that the offending paragraphs were ‘a peripheral part’ of the Tribunal’s proportionality analysis, the errors of law ‘did not materially affect its conclusion’,  and the principle in Dobie should therefore prevail. As Maurice Kay LJ concluded:
In truth, once … the Council had established that there was really no viable or practicable alternative way of running Brightwell effectively, there was only ever going to be one outcome to this case. The legal error can have made no difference.
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The last we will hear of Ms Mba in this country will be when the Supreme Court dismisses her application for permission to appeal. I don’t think she will get much joy from the European Court of Human Rights either.
Jeff: Thank you for the further clarification and information you have provided on this case.
Regrettably, others – like Andrea Minichiello Williams, Barrister and Director of the Christian Legal Centre – who supported Ms Mba’s appeal – lack your common sense approach.
Their attempts to use “lawfare” to impose religious dogma on all others in our country need to be resisted and – dare I suggest it? – condemned by moderate religious clerics like yourself.
This American approach of using the legal system to create new laws is profoundly undemocratic; if Williams is unable to convince the electorate and parliamentarians of the rightness of her cause, she should stop pursuing this pointless “crusade” of hers, which does the reputation of all decent-minded religionists no good at all.
I am afraid that many who are, on face value at least, fundamentalist or conservative in their views rarely understand the theology of Christian teaching. I believe, though acknowledging that I may be wrong, that this was the essence of the ET and EAT judgements. Though of course they should not have gone in this direction as it is far from clear and a most difficult area to try to understand. Yet there is a sense that the COA understood this though pointing out that courts should not get involved in religious argument. Yet if a decision turns on facts before the court it has, as I see it, little choice but to consider at very least the basic thinking (theology) behind the claimants actions.
Mba had been provided with the contractual information before employment informing her that she would be expected to work Sundays. Merton’s managers had also gone out of their way to accommodate Mba, possible to the detriment of other staff. As a Church of England Minister I, like ministers of other Christian denominations, work Sundays. I am not sure my congregation would be happy if I said that I could not work Sundays as it is the sabbath.
I am most supportive of the secular courts as they attempt to deal with religion related issues, that may not always get it right. I think Baroness Hale has a good understanding of the broader issues, e.g. Begum.
I do agree whole heartedly with Cornwall that such instances do little for Christians in general, or indeed other faith groups. Fundamentalism is, after all, often founded in misunderstanding. As for persecution, there are many people who face torture and death in other countries for their faith – that is true persecution.
This and similar recent judgments must surely raise a pre/cautionary message in the minds of prospective employers NOT to employ dogmatic religionists of any kind but in particular those of an evangelical or fundamentalist christian bent. These people do their own cause no good whatsoever. One aspect of this case which I think is negatively critical is where the employer is concerned in that this woman stated when she was offered the job that she expected not to have to work on Sundays. At that point, the employer should have politely declined her application for employment, thus avoiding this whole unnecessary saga which – no doubt – fundamentalist christian activists will be citing as yet another “terrible” example of the extent to which they are being “persecuted” in our country. You could not make it up !!
It would have been lamentable if this lady had succeeded at any stage.
From the judgment of the EAT (quoting that of the ET) we learn that she had suggested colleagues who had could do her Sundays instead of her, one of whom at least judging by her name was Muslim. And indeed during an interview on Radio Four just before the hearing she remarked that to her Muslim colleagues Sunday was not a holy day and they could work them.
It seems to me (if anyone differs I would be interested to know why) that if Merton had said that “If you are not a Sabbatarian Christian you must work Sundays, but if you are you need not” that would have been an act of direct religious discrimination against those who were not.
I add this: that to excuse people with childcare issues from their equal share of the difficult shifts is likely to constitute indirect gender discrimination, because those people are much more likely to be female than male, and such a policy is detrimental to their colleagues who have to take more nights and weekends. Again, if I am wrong, why am I wrong?
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