Thursday, 5 December 2013

Mba v Merton Council - Christians and Working on Sunday - Part 2

The Court of Appeal has issued its judgment in MBA v London Borough of Merton [2013] EWCA Civ 1562 which is an Appeal from the Employment Appeals Tribunal judgment MBA v London Borough of Merton  [2012] UKEAT 0332_12_1312.

I blogged about the case on 11 January 2013 and whilst I was not surprised that Mrs Mba lost her case on the facts I was extremely concerned at the legal reasoning of the EAT and for that reason I am extremely relieved by the Court of Appeal decision, Mrs Mba still lost her case on the facts but an an entirely different legal basis.

Ms Mba was a care worker at a registered children’s home which, not surprisingly,  was open 7 days a week, 24 hours a day and requires full staffing at all times.  Mrs Mba however is a Christian who believes that it is wrong to work on Sunday.  When she was eventually rostered to work on a Sunday she did not attend work on the Sundays she was rostered and disciplinary action followed. Eventually she resigned 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 that is of course merely a personal view

 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 was 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.

I stated at the time that the EAT had  "seriously misunderstood discrimination law." and I am glad to see that the Court of Appeal agreed. 

In the decision Lord Justice Maurice Kay held that what mattered was whether Mrs Mba had a sincere belief which was held by some Christians.  He went back and reemphasised the fundamental test laid down by Lord Nichols at para 22 of Williamson v. Secretary of State for Education [2005] UKHL 15 where he said

 "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', to adopt the felicitous phrase of the Jacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v Anselem (2004) 241 DLR (4th) 1, 27, para 52. 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. As Jacobucci J also noted, at p.28, para 54, religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising."

 Lord Justice Maurice Kay emphasised that there may be legitimate differences of belief within religions at para 14 when he said.
This 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.

 Paradoxically the fact that her belief was a minority one made it easier to accommodate her.

Lord Justices Elias and Vos went further and applied Article 9 of the European Convention on Human Rights to the issue of Religious Discrimination.  They decided that it was wrong to even look at whether the Appellants beliefs were shared what mattered was whether they were sincere. 

Para 37 Elias:  in my view, it is the Article 9 dimension of this case which made it inappropriate for the Employment 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.

para 41 Vos:  The question of whether Mrs Mba's belief was widely held might, in theory and absent Article 9, be relevant to the proportionality question for the reasons I have given. But there is no reason why regulation 3(1)(b)(iii) cannot be equally well read to exclude such a consideration on the ground that Article 9 does not require any test of group disadvantage, and concentrates only on the religious freedom of the individual concerned.
The decision, though it does not help Mrs Mba will certainly make it easier to bring and to win claims of Religious Discrimination.  The disgraceful decision by the Court of Appeal in Ladele v London Borough of Islington [2009] EWCA Civ 1357 that Mrs Ladele's belief in the sanctity of marriage was not a 'core' part of her religion has now been finally put to rest.  This should avoid Courts and Tribunals in the future being driven into arguments about theology which the House of Lords in Williamson had accepted are outside the competence of secular courts

1 comment:

Andrew T said...

Her attitude to her colleagues - "let them take my Sundays" - left a lot to be desired, didn't it?