Mba v Merton London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Elias,Lord Justice Vos |
| Judgment Date | 05 December 2013 |
| Neutral Citation | [2013] EWCA Civ 1562 |
| Docket Number | Case No: A2/2013/0201 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 December 2013 |
[2013] EWCA Civ 1562
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
EMPLOYMENT APPEAL TRIBUNAL (3 JUDGES)
UKEAT/332/12SM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Elias
and
Lord Justice Vos
Case No: A2/2013/0201
Mr Paul Diamond (instructed by Andrews Law Solicitors) for the Appellant
Mr Jake Davies (instructed by South London Legal Partnership) for the Respondent
Hearing date: 23 October 2013
Approved Judgment
Some Christians attach great significance to the Fourth Commandment:
"Remember the Sabbath day to keep it holy. Six days shalt thou labour, and do all thy work: But the seventh day is the Sabbath of the Lord thy God: in it thou shalt not do any work …"
Mrs Celestina Mba is a practising Christian. She attends a church in South London. She has a deep and sincere belief that Sunday is a day for worship and not for work. In July 2007 she became employed as a care assistant at Brightwell, a children's home run by the London Borough of Merton (the Council). The job description included the following provision:
"… to undertake duties outside normal working hours as required by the shift rota including weekends, Bank holidays and sleeping duties."
Such a provision is not uncommon in a working environment which necessitates 24/7 coverage. The children in question have serious disabilities and complex care needs arising from challenging behaviour, medical needs, feeding difficulties and similar problems.
Although Mrs Mba took the view that, as a result of what passed between her and the Council's management at the time of her appointment, she was not contractually obliged to work on Sundays, it is now common ground that, whilst management would endeavour to arrange the rosters so as to permit her not to work on Sundays (and this was achieved in the early months), her legal obligation was to work on Sundays as and when required. When the Council began to roster her for Sunday working, a dispute arose. To cut a long story short, she raised a grievance. It was rejected. She was scheduled to work certain weekends, including Sundays. She declined to do so. Disciplinary proceedings ensued, leading to a final warning in early 2010. An appeal against that was rejected on 25 May 2010. Five days later Mrs Mba resigned "with regret". In due course she commenced proceedings in the Employment Tribunal (ET) alleging constructive unfair dismissal and indirect religious discrimination. Once the ET had rejected her case on the contractual terms, the central issue was that of religious discrimination.
The statutory framework
Religious discrimination was a late arrival in the panoply of protected characteristics. Regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003 provided:
"(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if —
(a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or
(b) 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."
Thus, regulation 3(1)(a) was concerned with direct discrimination (which has never been an issue in the present case) and regulation 3(1)(b) was concerned with indirect discrimination. The regulation was a faithful implementation of the requirements of Council Directive 2000/78/EC. The Regulations have now been replaced by the Equality Act 2010 but the Act does not apply to the present case.
At all stages of this litigation, reference has also been made to Article 9 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) which enshrines the qualified right to freedom of religion, including the right to manifest one's religion, either alone or in community with others and in public or private, in worship, teaching, practice and observance. However, the present case is confined within the four corners of the statutory jurisdiction of the ET, which does not extend to determining alleged breaches of human rights pursuant to section 6 of the Human Rights Act 1998. If Article 9 has relevance in the present case, it can only be in the context of construing regulation 3 of the domestic Regulations, pursuant to section 3 of the Human Rights Act.
The decision of the ET
The ET identified the relevant "provision, criterion or practice" (PCP) as the requirement that staff worked Sunday shifts as rostered. It addressed the issue of legitimate aim in this passage:
"73. … we accept that [the Council] genuinely held the concerns that were identified at the time as to the impact upon the business of [Mrs Mba] not working Sundays … we conclude that … [the Council] made substantial attempts to try and accommodate [her] belief, in particular in arranging matters so that she was not required to work any Sundays at all until 26 July 2009, almost two years after her employment commenced, when a member of staff in her position would usually work two Sundays out of every three …
74. … We consider that [these considerations] were plainly [legitimate], given their relationship to the [Council's] effective running of its business, both in terms of service delivery at the Brightwell and the wider considerations of costs and staffing …"
There is no suggestion of legal error in this finding. The real issue is proportionality.
The ET then directed itself appropriately as to proportionality:
"75. … we then have to consider whether the PCP that staff worked Sunday shifts as rostered was a proportionate means of achieving the legitimate aim … we have to balance the discriminatory impact on [Mrs Mba] as against the reasonable needs of [the Council's] business."
It also observed that Mrs Mba's contract required her to work Sundays and that she had not been promised any permanent arrangements to the contrary.
In a later passage (paragraphs 81–86), the ET considered whether a number of alternative proposals advanced in submissions on behalf of Mrs Mba were in reality viable and practicable alternatives. It concluded (at paragraph 87) that "none of the courses that she has suggested could have been undertaken without significant disadvantage to [the Council] in terms of costs, quality and efficiency of service delivery". Again, there can be no criticism of these findings.
It is the next part of the decision which is targeted by this appeal:
"88. … we also need to weigh in the balance the discriminatory impact of the PCP upon [Mrs Mba]. We accept that the PCP impacted on her genuinely and deeply held religious belief and observance … 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 … As much is as accepted in terms as … Bishop Nazir-Ali's witness statement …, where he states that some Christians will not work on the Sabbath. To approach the matter in this way does 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."
Having weighed all these matters in the balance, the ET concluded that the imposition of the PCP was proportionate and that the claim of indirect discrimination failed.
The decision of the EAT
In dismissing Mrs Mba's appeal, the EAT found paragraph 88 of the ET's decision to be "inelegant in its phraseology" but
"read in context and bearing in mind that the [ET] was here dealing with the weight to be attached on the one hand to the employer's objective and on the other the discriminatory impact on Christians generally, this is, in our view, what the Tribunal meant." (Paragraph 48).
This appeal
When Lord Justice Elias granted permission to appeal to this Court he made it clear that he was doing so because of concern about the approach of the ET in paragraph 88 of its decision. This was to be and should have remained the focus of the appeal. However, in his written and oral submissions, Mr Paul Diamond has sought to paint with a broader brush on a canvas extending far beyond the narrow point in respect of which permission was granted. I do not intend to deal with the broader points which Mr Diamond tried but was not always permitted to make.
Discussion
In a nutshell, the case for Mrs Mba is that the ET fell into legal error in paragraph 88, particularly in sub-paragraphs (i), (ii) and (iii). The complaint is that (i) and (ii) are not relevant to the issue of proportionality and, more fundamentally, (iii) misstates the law.
To understand all this, it is first necessary to refer to the established approach of our Courts to the issue of religious doctrine. In R (Williamson) v...
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