Christian loses religious discrimination claim

The claimant in the case of Mba v Mayor and Burgesses of the London Borough of Merton was a practising Christian who worked as a care assistant in a children's home run by London Borough. Her job required her to undertake duties outside normal working hours, including weekends. The dispute arose as to whether she would be required to work on Sundays and disciplinary proceedings were begun against her when she refused to do so. She resigned in May 2010 and commenced proceedings in the employment tribunal, alleging constructive unfair dismissal and indirect religious discrimination.

To succeed in a claim for religious dismissal the claimant must prove there is a 'provision, criterion or practice' (PCP) in place that effects them worse as a result of their religion.  The Tribunal identified the relevant PCP as the requirement that staff worked Sunday shifts as rostered. It held that, among other things, it was necessary to weigh the discriminatory impact of the PCP upon the claimant. While the PCP had impacted on her genuinely and deeply held religious belief, the defendant had made efforts to accommodate her in that respect for two years and had been prepared to organise shifts so that she was able to attend church every Sunday. The Tribunal further held that the claimant's belief that no paid employment should be carried out on Sundays was not a core component of the Christian faith, and that the imposition of the PCP had been proportionate and the claim of indirect discrimination failed.

The claimant appealed unsuccessfully to the Employment Appeal Tribunal, and from there to the Court of Appeal.

The claimant submitted that the tribunal had erred in its judgment by taking matters into consideration that were not relevant to the issue of proportionality, namely that the defendant had made efforts to accommodate the claimant for two years, and that it had been prepared to arrange shifts to allow her to attend church each Sunday. She further submitted that the tribunal had misstated the law in concluding that her belief that Sunday should be a day of rest, whilst deeply held, was not a core component of the Christian faith and that to approach the matter did not involve a secular court impermissibly adjudicating in evaluative terms upon religious beliefs as opposed to simply proceeding on the basis of evidence before it as to the components of the Christian faith. Consideration was given to art 9 of the European Convention on Human Rights (the Convention), which enshrined the qualified right to freedom of religion.

The appeal would be dismissed.

(1) On the evidence, the fact that the defendant had made efforts to accommodate the claimant for two years, and that it had been prepared to arrange shifts to allow her to attend church each Sunday, had been irrelevant factors to consider in the proportionality exercise. Equally, the fact that the defendant would accommodate church worship was no answer to the claim that it should accommodate her genuinely held belief that she ought not to work on Sunday. While those factors showed that the defendant had been acting in good faith and had gone some way towards meeting her concerns, the issue had been whether it had gone far enough, and those factors did not help in answering that question.

(2) The question was whether the tribunal had been entitled to take into account the fact that the refusal to work on Sunday, although a deeply held belief of the claimant, was not a core component of the Christian faith. Were the case to be considered purely as a domestic law indirect discrimination case (independently of considerations about art 9 of the Convention), it would at least indirectly be a legitimate factor for the tribunal to consider. That was because if the belief which resulted in the disadvantage was a core principle or belief of a particular religion, a policy, criterion or practice which interfered with the manifestation of that belief would impinge upon a greater number of potential adherents than would otherwise be the case, and in general the greater the impact, the harder it would be to justify the provision. Therefore, an evaluation of the impact had to include its extent.

The tribunal ought not to have taken into account the fact that the claimant's refusal to work on Sunday had not been a core component of her faith.

(3) The protection of freedom of religion conferred by art 9 of the Convention did not require a claimant to establish any group disadvantage; the question was whether the interference of that individual right by the employer was proportionate given the legitimate aims of the employer. In substance, the justification was likely to relate to the difficulty or otherwise of accommodating the religious practices of the particular individual claimant.

Article 9 could not be enforced directly in employment tribunals because claims for breaches of Convention rights did not fall within their statutory jurisdiction. However, domestic law had to be read so as to be consistent with Convention rights where possible. It was simply not possible to read down the concept of indirect discrimination to ignore the need to establish group disadvantage. But there was no reason why the concept of justification should not be read compatibly with art 9 where that provision was in play. In that context it did not matter whether the claimant was disadvantaged along with others or not, and it could not in any way weaken her case with respect to justification that her beliefs were not more widely shared or did not constitute a core belief of any particular religion.

(However, that was not to say that the number of employees sharing a particular belief would necessarily be irrelevant to a justification challenge where art 9 was engaged. Assuming that the employer's criterion was designed to achieve a legitimate end, the greater the number of employees affected, the more difficult it was likely to be for an employer to accommodate those beliefs in a way which was compatible with his business objectives. So paradoxically, if a belief was not widely shared, which was more likely to be the case where it was not a core belief of a particular religion, that was a factor which under art 9 was likely to work in favour of the employee rather than against).

The claimant's art 9 right was incapable of direct enforcement in the tribunal. It followed that it was the art 9 dimension of the instant case that made it inappropriate for the tribunal, when assessing justification, to weigh in the employer's favour the fact that the appellant's religious belief was not a core belief of her religion so that any group impact was limited. However, on the evidence, that had been a peripheral part of the proportionality analysis of the tribunal and had not materially affected its conclusion.

Accordingly, notwithstanding the errors in the tribunal's judgment, the appeal would be dismissed.

Nick Barnett

Published on 19/03/2014