This week will see employment law hit the headlines again as another case on religious discrimination is heard in the Court of Appeal. The case of Celestina Mba has already attracted considerable attention both at the Employment Tribunal, and then the Employment Appeal Tribunal. It has been billed by the press, particularly the Daily Telegraph, as being about the right of Christians to be forced to work on Sundays. However, it isn’t as simple as that and it should not be seen as a battle over whether Christians have the right to refuse to work on Sundays or not. It is not that straightforward and the Mr Justice Langstaff sitting in the EAT said of the case;
We should make it clear at the outset of this judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed. No such broad general issue arises
Celestina Mba is a devout Christian. She worked in a children’s care home but refused to work on Sundays. For two years her employer, the London Borough of Merton managed to accommodate this, but then had the need to ask her to work occasional Sunday shifts. Ms Mba resigned from her role as a care worker and claimed constructive dismissal on the basis that she being asked to work on Sundays was against her religion and she was not prepared to countenance doing so. She brought a claim on the basis that her employer’s requirement that she work on a Sunday was an example of unlawful indirect discrimination on the grounds of her “protected characteristic” of religious belief.
Although her claim was brought under the old Employment Equality (Religion or Belief) Regulations 2003, the same law exists under the Equality Act 2010 which consolidated the various discrimination laws. In brief, indirect religion discrimination occurs when A applies a “provision, criterion or practice” to B; B has that particular religion/belief and the employer applies that provision etc to persons who do not have that religion/belief. In doing so that puts people who do have that religion/belief at a disadvantage and the employer cannot objectively justify that the provision etc is a proportionate means of achieving a legitimate aim.
Merton said that it sought to justify its requirements for these reasons;
1. it needed an appropriate gender mix on each shift
2. it needed an appropriate mix of staff at levels of seniority on each shift
3. the service operated under budgetary constraints and needed to be cost-effective, (so simply recruiting another person to cover Sundays wouldn’t be possible)
4. it needed to treat other staff fairly who were having to cover the Sundays that Mba wouldn’t work
5. it has to provide continuity of care for the children
The Employment Tribunal and the Employment Appeal Tribunal agreed that these were legitimate reasons for asking her to work on a Sunday. Furthermore, many Christians do work on a Sunday and that does not preclude them from practising their faith.
This case is not about the right of Christians to work on Sundays or not, it is about the ability of employers to manage their employees and work systems so that they can function efficiently. Employers should not be allowed to impose demands upon employees that impact their private lives in this way lightly. Neither should the views of a minority be allowed to dictate to the majority: it is all about juggling the interests of all employees with the demands of their employers. The crucial point is that although Mba’s Christian beliefs are impacted by the request, Merton was able to justify its requirement to ask her to work Sundays. If they had not been able to justify that request Ms Mba would have won her case. That is why this case does not set a general rule or principle that Christians must work Sundays or will be dismissed if they refuse.
If Mba wins her case at the Court of Appeal it will make it much harder for employers to manage their workforce, increase costs, and place a greater burden on those employees who do not share that particular set of beliefs (in this case Sabbath-observing Christians). The result will be eagerly anticipated.