Mba v Merton London Borough Council
| Jurisdiction | UK Non-devolved |
| Date | 2013 |
| Year | 2013 |
| Court | Employment Appeal Tribunal |
Discrimination - Religion or belief - Indirect discrimination - Employer requiring care workers to work weekends - Claimant objecting on religious grounds to working on Sundays - Whether requirement to do so indirect discrimination - Whether proportionate means of achieving legitimate aim -
Care workers at a residential home for disabled children were required by the respondent council to work three-week rotas, with each employee working two weekends in three. The claimant, a Christian, was employed on the basis that the council would take reasonable steps to accommodate her request not to work on Sundays, but after two years she was required to comply with the normal rota, and when she refused to work on Sundays she was disciplined and then resigned. She claimed that she had been discriminated against on the ground of her religion, contrary to regulation 3(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003F1, contending that by requiring her to work on Sundays the council was applying a provision, criterion or practice which put persons of her religion or belief at a particular disadvantage when compared with persons who did not share that belief. The employment tribunal dismissed the claim, directing itself that, weighing the discriminatory impact on the claimant against the reasonable needs of the council, since the council was prepared to enable her to attend church on Sundays, and since her belief that Sunday should be a day of rest was not a core component of the Christian faith, rostering the claimant to work some Sundays was a proportionate means of achieving the legitimate aims of ensuring an appropriate gender and seniority balance on each shift, fair treatment of its staff and a cost effective service, for the purposes of regulation 3(1)(b)(iii).
On an appeal by the claimant—
Held, dismissing the appeal, that it was not for a tribunal to evaluate the content of religious belief when assessing proportionality under regulation 3(1)(b)(iii) of the 2003 Regulations but to ask whether the particular claimant identified a particular matter as a core component of her faith; that it was, however, appropriate for the tribunal to have had regard to evidence that many Christians would work on the Sabbath in weighing the impact of such a requirement; that the proper approach to the issue of justification was one of intense scrutiny with the onus on the employer to justify any provision, criterion or practice at the time it was called into question; and that, as the tribunal had directed itself properly and had based its conclusion that applying the requirement to work on Sundays was proportionate, on the evidence, its decision was not perverse (post, paras 27, 33, 36, 39, 46–48).
The following cases are referred to in the judgment:
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [
Bilka-Kaufhaus GmbH v Weber von Hartz
Cherfi v G4S Security Services Ltd UKEAT/379/11 (unreported) 24 May 2011,
Hampson v Department of Education and Science [
Islington London Borough Council v Ladele (Liberty intervening)
R (Elias) v Secretary of State for Defence
R (Williamson) v Secretary of State for Education and Employment
Y and Z v Germany
No additional cases were cited in argument.
APPEAL from an employment tribunal sitting at London (South)
By a decision sent to the parties on 21 March 2012, the tribunal dismissed a claim of religious discrimination by the claimant, Ms C Mba, against her employer, Merton London Borough Council. By a notice of appeal dated 25 April 2012, she appealed on the grounds that (1) the tribunal was wrong in taking into account a view of what was “core” to Christian belief; (2) the tribunal failed to apply the necessary anxious scrutiny to the test of justification under regulation 3(1)(b)(iii) of the Employment Equality (Religion or Belief) Regulations 2003; and (3) the tribunal had wrongly placed responsibility for showing proportionality on the claimant.
The facts are stated in the judgment.
Paul Diamond (instructed by
Jake Davies (instructed by
LANGSTAFF J (PRESIDENT) gave the judgment of the appeal tribunal.
Introduction1 “Remember the Sabbath Day to keep it holy” is the fourth commandment. It appears on the walls of many churches in its King James formF2. Many Christians, such as members of the Lord’s Day Observance Society, take a particular view as to how they should give effect to it. The claimant in this case considered that she must not work on a Sunday. Under her contract of employment, as a residential care officer for the council, she could be required to work on a Sunday. She refused to do so.
2 In days gone past the employer would have been free to have dismissed the claimant for failing to observe her contract. It would not matter that it offended her religious scruples. She would have had no recourse. The Employment Equality (Religion or Belief) Regulations 2003 have changed the landscape. It is no longer open to an employer to require staff to work on Sunday and thereby cause disadvantage to those who are Christian unless the employer can show that the requirement is objectively justified: a standard which has to be satisfied in accordance with the exacting test of proportionality as it was called by Mummery LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213, para 151:
Mummery LJ commented: “So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group.”“As held by the Court of Justice in Bilka-Kaufhaus GmbH v Weber von Hartz (Case 170/84) [1987] ICR 110, paras 36–37 the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end.”
3 The question on this appeal is whether the employment tribunal, which heard the claimant’s complaint that she had been entitled to resign in circumstances in which her employer wrongfully insisted that she should work on Sundays, correctly approached the question whether the employer had objectively justified the requirement upon her to do so. 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. The questions raised must be determined in the specific circumstances of this particular case alone. What are the circumstances?
The facts4 The tribunal found that in 2007 the claimant was recruited to work from 30 July 2007 at a registered children’s home, the Brightwell. The home provided short residential breaks for children with serious disabilities and complex care needs, including such as challenging behaviour, medical needs, feeding difficulties and the like. A minimum standard set nationally requires that the staff in day to day contact with such children at such a home should include both genders, and that the staff left in charge of the home should have substantial relevant experience.
5 It was an aim of the council, and required nationally, that continuity of care should be ensured in so far as possible. A lack of such continuity increases the risk of significant behavioural change in those children who have difficulty in communicating going unnoticed.
6 The home was open seven days a week, 24 hours a day in general. There was a maximum of eight and sometimes no more than four or five children staying there. Staff worked in three shifts: morning, afternoon and night, covering the 24 hours. Three members of staff would be on duty at any one time: a team leader and two residential care officers. Sometimes it was necessary to add another member of staff.
7 Rotas for their work were organised over a three-week period. Staff worked one long week (seven days and no days off), then one regular week (five days on two days off); then one short week (three days on, four days off). They worked two of the three weekends in each rota: that is, each person worked four weekend days every three weeks. Once the claimant had been recruited there were five full time members of staff. But there were nine staffing posts. Bank and agency staff filled the four vacant positions. The cost to the council for those staff to work weekends, rather than full-time staff, was higher than it was for weekdays.
8 When the claimant was offered the job she understood that a promise had been made to her that she need not work Sunday shifts. Management thought that it had said it was not possible to alter the rota arrangements we have described, but recognised that it was likely to be possible that the rota could be worked so that the claimant could work every Saturday and have every Sunday as a day off. This fell short of a promise never to require the claimant to work on Sunday—but it was an offer to take reasonable steps to accommodate her wishes at least in the short term. The tribunal accepted that the council’s version was correct.
9 After the claimant began work matters came to a head. Internal discussion occurred. The claimant...
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