Last week, in Mba v London Borough of Merton  EWCA Civ 1562 the Court of Appeal dismissed Mrs Celestina Mba’s claim against Merton LBC for constructive unfair dismissal and indirect religious discrimination. Following is our analysis.
Mrs Mba is a practising Christian who believes very strongly that Sunday is a day for worship and not for work, in accordance with what she understands to be the terms of the Fourth Commandment: “Remember the Sabbath day to keep it holy…”. She was employed as a care assistant at a children’s home run by the London Borough of Merton. Her job description included a requirement “… to undertake duties outside normal working hours as required by the shift rota including weekends, Bank holidays and sleeping duties” (para 1). Though she believed that as a result of what had passed between her and the Council’s management at the time of her appointment she was not contractually obliged to work on Sundays, it was common ground in the appeal that, though management had tried not to roster her for Sunday working, her legal obligation was to work on Sundays if required (para 2). When she raised a grievance it was rejected and that rejection was confirmed on appeal. She resigned “with regret” and brought proceedings in the Employment Tribunal alleging constructive unfair dismissal and indirect religious discrimination. Her case was rejected both at first instance and on appeal to the EAT.
The relevant law at the time
The Employment Equality (Religion or Belief) Regulations 2003 have since been superseded by the Equality Act 2010. However, Regulation 3 of the 2003 Regulations, in force at the time, provided as follows:
“(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”.
Regulation 3(1)(b) was concerned with indirect discrimination, which was the issue before the Court of Appeal in Mba: in particular, the question of proportionality (para 5). The crux is at paragraph 88 of the Employment Tribunal’s judgment as quoted by Maurice Kay LJ at para 8:
“88. … we also need to weigh in the balance the discriminatory impact of the PCP upon [Mrs Mba]. We accept that the PCP [provision, criterion or practice] 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.”
The ET concluded that the imposition of the PCP was proportionate and that the claim of indirect discrimination failed. As to Article 9 ECHR, in the EAT Langstaff J had concluded that that Article added nothing of substance; and that while para 88 of the Tribunal’s judgment had been “inelegant in its phraseology” (para 48) the Tribunal had been correct to apply a quantitative rather than a qualitative test to assess the number of Christians impacted by the PCP.
The case for Mrs Mba, however, was that paragraph 88 of the ET’s judgment was erroneous: that (i) and (ii) were not relevant to the issue of proportionality and, more fundamentally that (iii) was just wrong in law (para 12).
Maurice Kay LJ cited Lord Nicholls on the attitude of the courts to religious belief as follows – in R (Williamson) v Secretary of State for Education and Employment  2 AC 246 at 22:
“When the genuineness of a claimant’s professed belief is an issue in the proceedings the court will inquire into and decide this issue as a question of fact. This is a limited inquiry. The court is concerned to ensure an assertion of religious belief is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’ … But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its ‘validity’ by some objective standard such as the source material upon which the claimant founds his belief on the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual” (para 13).
He observed that everyone accepted both that Mrs Mba was a devout Christian with sincere Sabbatarian beliefs and that other Christians did not take the same view (para 13). Moreover, “sensitivity to the diversity of beliefs between and within religions is something which flows from the respect that is accorded to the range of sincerely held religious beliefs” (para 14). As to the ET’s application of the provision, criterion or practice, however, he concluded that the ET has been in error:
“Regulation 3(1)(b)(i) envisages a PCP which applies or would apply equally “to persons not of the same religion or belief” as the claimant and which puts or would put “persons of the same religion or belief” as the claimant at a particular disadvantage when compared with other persons. The fact that those at the requisite particular disadvantage are described in the plural – “persons” – is the reason why the test is sometimes described as one of “group disadvantage”. However, the use of the disjunctive – “religion or belief” – demonstrates that it is not necessary to pitch the comparison at a macro level. Thus it is not necessary to establish that all or most Christians, or all or most non-conformist Christians, are or would be put at a particular disadvantage. It is permissible to define a claimant’s religion or belief more narrowly than that. In my judgment, this is where the ET went wrong. It described Mrs Mba’s Sabbatarian belief as “not a core component of the Christian faith”. By so doing it opened the door to a quantitative test on far too wide a basis” (para 17).
In his view, the ET should have found that the application of the Sunday working PCP satisfied Regulation 3(1)(b)(i), then examined whether whether the Council could show “a proportionate means of achieving a legitimate aim”, pursuant to Regulation 3(1)(b)(iii) (para 18). He rejected the argument that giving Regulation 3 its natural meaning would involve a breach of Article 9 – on which the Court had not had the benefit of full submissions (para 21). He concluded that the appeal should be dismissed:
“once Mrs Mba failed to establish the more favourable terms of the contract for which she had contended and 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 (para 24).
Elias and Vos LJJ agreed that the appeal should be dismissed, but did so for different reasons from those advanced by Maurice Kay LJ.
For Elias LJ,
“The more difficult question is whether the Tribunal was entitled to take into account the fact that the refusal to work on Sunday, although a deeply held belief of the appellant, ‘is not a core component of the Christian faith’.” (para 30).
If, therefore, one were to consider the case purely in terms of domestic law indirect discrimination, independently of Article 9 considerations, then his view was that it would at least indirectly be a legitimate factor for the Employment Tribunal to consider
“because if the belief which results in the disadvantage is a core principle or belief of a particular religion, a policy, criterion or practice which interferes with the manifestation of that belief will impinge upon a greater number of potential adherents than would otherwise be the case” (para 31) and “an evaluation of the impact must include its extent” (para 32).
Therefore, the Tribunal was not wrong to have had regard to the overall impact of the criterion when assessing proportionality (para 33).
However, similar considerations did not apply in relation Article 9 ECHR: the question then was whether or not the interference with the individual right by the employer was proportionate given the legitimate aims of the employer (para 34: at which point Elias J cited Eweida & Ors v United Kingdom  IRLR 231 paras 79-84).
Elias J pointed out that claims under Article 9 could not be enforced directly in employment tribunals because claims for breaches of Convention rights do not fall within their statutory jurisdiction (para 35); however,
“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. It is for this reason that in my view the Employment Tribunal was wrong to make reference to this factor as one assisting the employer” (para 35).
Furthermore, it was easier for an employer to accommodate a small group of employees who shared a particular belief than to accommodate a large one:
“So paradoxically, if a belief is not widely shared, which is more likely to be the case where it is not a core belief of a particular religion, that is a factor which under Article 9 is likely to work in favour of the employee rather than against”.
In conclusion, it had been wrong for the Employment Tribunal, when assessing justification, to weigh in the employer’s favour the fact that Ms Mba’s religious belief was not a core belief of her religion so that any group impact was limited – but that had not materially affected the Employment Tribunal’s conclusion and, accordingly, he would dismiss the appeal (para 37).
Though concurring with Elias LJ and dismissing the appeal, Vos LJ concluded that while, absent Article 9,
“… the question of whether the refusal to work on Sunday was or was not a core component of the Christian faith might be relevant to the question of proportionality … Article 9 has the effect in this case of making it irrelevant, for the purposes of determining proportionality, to examine whether the refusal to work on Sunday was a core component of the Christian faith” (para 39).
The judgment in Mba has generated considerable discussion, not least over the eccentricity of the EAT’s judgment. Neil Addison, at Religion Law Blog, points out that, though he was not surprised that Mrs Mba lost on the facts, he was concerned about the legal reasoning of the EAT and extremely relieved by the Court of Appeal decision: “Mrs Mba still lost her case on the facts but an an entirely different legal basis”. On the other hand, Andrea Minichiello Williams, director of the [Evangelical] Christian Legal Centre was reported as suggesting that “if the Court of Appeal had been prepared to consider the facts according to the correct test”, Mrs Mba would have won. She did, however, suggest that the judgment was “a big step forward for proper treatment of Christians”.
We would suggest that the case highlights two issues.
First, in line with Eweida & Ors, the judgment appears to weaken the idea of a simple checklist test of “core beliefs”: just because other devout Christians are happy to work on Sundays does not mean that someone with a principled religious objection to Sunday working is to be regarded as a religious eccentric. Moreover, Elias LJ’s reference (para 35) to justification being read compatibly with Article 9 “where that provision is in play” would appear to support that view.
Secondly, a demand for “reasonable accommodation” has to be within reasonable limits. As the Leader of Merton Council pointed out after the judgment was handed down, Merton tries wherever possible to accommodate its employees’ needs and requirements but there are children in local authority care with severe disabilities who need weekend support and ”It is vital that these children are looked after by carers who are familiar with their needs and are available to provide round the clock care over the weekend”.
As the NHS is finding out as the calls for weekend consultant cover get ever louder, balancing the understandable desire for free weekends (and not just on religious grounds) with the 24/7 needs of the sick and the vulnerable is a very serious problem with no quick-fix solutions.