Friday, 11 January 2013

Mba v Merton Council - Christians and Working on Sunday

The Employment Appeals Tribunal decision in the case of  Mba v London Borough Of Merton [2012] UKEAT 0332_12_1312  has been published and makes interesting but worrying reading.  In my view the ultimate decision in the case namely that the Claimant Ms Mba was not unlawfully discriminated against is correct but the reasoning of the EAT is extremely flawed on a crucial aspect of the case namely the attitude of Christians generally to working on a Sunday and the specific attitude of Ms Mba.

 Prior to the issuing of the written judgment the decision had been reported in the Press as meaning that "Christians Have no Right to Refuse to Work on Sunday" which is very definately NOT what the judgment says.  Indeed at para 3 of his judgment Mr Justice Langstaff says

"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."

also in para 42 the EAT says

We do not think it was well expressed to say, as the Tribunal here said at 88(iii), that the belief that Sunday should be a day of rest was not a core component of the Christian religion. If that was all that was said, and if there had been no wider context in which to read it, to express matters in that way would have been capable of being offensive. It would have placed the Court where it should not be, in the position of judging the tenets of faith (see Williamson), and it would have been a misdirection of law.However, we do not think it is what the Tribunal was saying

The facts of the case are therefore significant.  In 2007 the Claimant Ms Mba was recruited to work at a registered children’s home which 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. 

The home, not surprisingly,  was open 7 days a week, 24 hours a day.  Staff worked in 3 shifts: morning, afternoon and night, covering the 24 hours with at least 3 members of staff  on duty at any  time.  Rotas for work were organised over a three week period and staff work two of the three weekends in each rota: that is, each person worked four weekend days every three weeks.  Bank and agency staff were employed but the cost to the employer for Agency staff to work weekends, rather than fulltime staff, was higher than it was for weekdays.

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.  This was a clear disagreement on the fact but the Tribunal having heard the evidence accepted that the employer’s version was correct and that decision of fact had to be accepted by the EAT.  In any event this question of whether Mrs Mba had been given a promise or not was a simple contractual issue which raised no point regarding Discrimination. 

In 2009 difficulties arose over the rostering and ultimately, by 22 June 2009,  Management said that the Claimant would be scheduled to work two weekends in three in accordance with the normal rota with effect from 13 July 2009.  Mrs Mba did not attend work on the Sundays she was rostered and Disciplinary action followed, which included a final written warning in early 2010.  An appeal against that was rejected on 25 May 2010.  Five days later the Claimant resigned.  It was noted by the EAT that there was never any question of the quality of the Claimant’s work nor her personal integrity.  Having resigned she brought a claim alleging "indirect" religious discrimination.

On the facts of her employment I have to say that I cannot see that there could be any question of Mrs Mba ever winning her case.  The Children in the home had to be fed and cared for on a Sunday just as much as on any other day and personally I would see that as performing a Christian act however my personal view on the nature of a Christians duty in this situation is not the same as Ms Mba's view and the mistake the EAT made was to take account the views of Christians such as  in balance against the views of Christians such as Ms Mba.

In the case the Employment Tribunal and the EAT had considered a witness statement that had been put in on behalf of Ms Mba by Bishop Nazir Ali which said.

“Some Christians will not work on the Sabbath (except for mercies), others may work only in an emergency.”

In deciding allegations of Indirect Discrimination, as occurred in this case, a Tribunal is supposed to be satisfied that a "group" of people are affected by the alleged Discriminatory practice and the evidence from Bishop Nazir Ali did this by stating that "some Christians will not work on the Sabbath".  The EAT however turned this around by deciding that because  "some Christians will work on the Sabbath" that meant that because only a minority of Christians would refuse to work therefore it was permissible to require Christians to work because only a minority of them would be affected.

In this respect the EAT seriously misunderstood discrimination law.  The requirement that no Christian could be guaranteed to have Sunday off affected those Christians such as Mrs Mba who were not willing to work on the Sabbath and that should have been the only relevant issue for the EAT.  Once it had decided that the rules of the Employer did affect that group of Christians then it should have gone on to decide whether the rule was justified which, on the facts of the case I am sure it was.  But they should not have tried to side step the issue by deciding that because only a minority of Christians refuse to work on a Sunday that of itself made the rule justifiable.

The legal route taken by the EAT is extremely problematic to all areas of Religious Discrimination, could Hijabs be banned because only a minority of Muslim women wear them or Sikh Turbans ?  On the basis of this decision the answer could be yes but I would be very surprised if that is how the decision is applied in practice. 


John Antell said...

I wonder whether this is not so much a case where "the EAT seriously misunderstood discrimination law" but where the EAT were engaging with the way the case had been put.

s.10 of EA states "a reference to a person who has a particular protected characteristic is a reference to a person of a particular religion" and s.19 refers to "persons with whom B shares the characteristic"

This appears to indicate that the group must be defined by its members being "of a particular religion". That religion could be put forward to be "Christianity" - as appears to have been done in this case, or it could be put more narrowly as being members of a particular Christian denomination. If it happens to be a Christian denomination with strong views on not working on Sundays the case would be stronger.

But it seems to me that if the protected characteristic is put forward as being religion then the group would be all members of the religion, not just a group within the religion who happen to have particular beliefs.

Of course you could bring a case based on membership of a group with particulars beliefs but then that would be on the basis of "belief" (which is also a protected characteristic) rather than religion per se.

At least that is how I see it.

Andrew T said...

This lady's case is unattractive. She took a job which involves Sunday working - the Tribunal found after hearing the evidence that she was not promised that she would never have to work on Sunday and it would be foolish for an employer to make such a promise.

When the time came she suggested two colleagues who could cover her shifts. Apparently to her the Sundays of non-Christians or non-Sabbatarians do not matter.

She is wrong.

Every employee's private life is of equal value. Sabbath observance or church-going do not trump seeing relations, shopping, visiting friends, or the other things people do on Sunday. To treat Christians as special is to discriminate against others.

The only fair and non-discriminatory solution is to roster everyone equally and then allow them to exchange. Allow: not force, bully, pressure, guilt-trip, or treat them as "not team-players" if they don't swap. In the last resort, the person rostered must turn up if nobody wants to exchange.

Incidentally, the same applies to people with childcare issues.

Andrew T said...

According to the BBC today this case is in the Court of Appeal this week - it was not clear whether it is a renewed application for permission or an appeal with permission granted on the papers or even by the EAT.

It would be appalling if she succeeded - a clear message that the Sabbatarian's Sunday is more important than a colleague's Sunday.

I hope Merton Council will vigorously defend the rights of their non-Sabbatarian staff.

Andrew T said...

Now we know: it was an appeal. Judgment reserved

Andrew T said...

Judgment 5 December.

Andrew T said...

Appeal dismissed: read all about it at

Errors of law in the ET judgment but the result was inevitable. This was a proportionate response to a legitimate need. Mrs Mba is trying to spin a win out of it - will probably seek permission to appeal which I hope will be refused. Enough is enough. Let's have no more attempts to make people of other religions or none take an nufair share of the burden of Sunday work.

Andrew T said...

Appeal dismissed

I hope that that is the end of it and that permission to go the Supreme Court will be refused.

Neil Addison said...

I have commented at
On balance a good judgment. I personally doubt if there will be an application to appeal to the Supreme Court and even more doubtful that permission would,be granted