Sunday working, Tribunal errors, but still no success for Mba

In Mba v Mayor and Burgesses of the London Borough of Merton, the Court of Appeal has ruled on the issue of indirect religious discrimination where an employee was required to work on Sundays but refused to do so because of her Christian, Sabbatarian beliefs.

Indirect discrimination will exist where the employer applies a provision, criterion or practice to an employee, who holds a certain religious belief, and when compared with others who don’t share the same religious belief, is placed at a disadvantage as a result of the provision, criterion or practice.

A claim of indirect discrimination will fail however, where an employer can show that its actions were objectively justified and as a proportionate means (that were reasonably necessary) of achieving a legitimate aim.

Here, Merton required staff to work on a seven-day rota, and Mrs Mba’s contract also required her to work on Sundays. For the first few years, she was allowed to have Sundays off, but eventually, Merton required her to work on Sundays.  Mrs Mba’s objected to this and issued a claim for indirect discrimination on the grounds of her religion/belief.

The Employment Tribunal rejected her claim, as the employer’s work rota could be objectively justified, largely because they were concerned with providing cost-effective services in difficult financial times. The Tribunal also found that Mrs Mba’s belief was not a widespread belief held by all Christians.

The Court of appeal unanimously rejected the subsequent appeal, but gave differing reasons for doing so. These ranged from the incompatibility or otherwise of UK and Article 9 of the European Convention on Human Rights, to the scope of those holding Mrs Mba’s religious beliefs, when considering the justification element of the indirect discrimination test (the “group disadvantage” test).

Overall therefore, Merton defended the claim, albeit the earlier Tribunals had erred in their approach despite arriving at the same outcome. The Court of Appeal have themselves provided a frustratingly unclear reasoning for their outcome, with the only clear conclusion being that Mrs Mba’s wishes could not be granted one way or another, ultimately overriding any failings on the part of the earlier Tribunals.