Sunday working and Religious Beliefs

In a recent case before the Court of Appeal (“CofA”) it was considered whether or not the Employment Tribunal (“ET”) and the Employment Appeal Tribunal (“EAT”) had properly approached the issue of indirect religious discrimination where a Christian employee had refused to work on Sundays.

Mrs Mba, a Christian holding a sabbatarian belief (a belief that Sunday should be a day of rest), was employed as a care officer in a home for children with disabilities and complex care needs. She was required to work on a rota system seven days a week. Despite her employment contract stating that she could be required to work on Sundays, the employer had allowed Mrs Mba to take every Sunday off for about two years under an informal arrangement. However, this arrangement became increasingly hard to manage so the employer started to require Mrs Mba to work Sundays. She refused and brought a claim for religious discrimination.

The ET rejected Mrs Mba’s claim finding that the employer could objectively justify the requirement of all care workers to work on Sundays. It also found that such an arrangement was needed to achieve the legitimate aim of continuing to provide cost-effective care when facing budgetary constraints. The ET accepted that Mrs Mba genuinely and deeply held religious beliefs but it also considered that her sabbatarian belief was not a “core component of the Christian faith”, i.e. some, but not all, Christians will work on Sundays. Mrs Mba appealed.

The EAT dismissed Mrs Mba’s appeal holding that that the ET was entitled to take into account the fact that many Christians will work on Sundays when applying the proportionality test. Mrs Mba appealed to the CoA.

The CoA ultimately unanimously dismissed the appeal, although it did criticise the ET’s reasoning for limiting itself to looking at the impact on Christians holding the same sabbatarian belief as Mrs Mba. It did, however, hold that there was no viable and practical alternative but to require Mrs Mba to work on Sundays as required by her employment contract and Mrs Mba had knowingly entered into this. Therefore any reasonable ET would have concluded that the requirement was justified.

The most useful, practical point for employers to take away from the decision in this case is that the employer was successful in justifying the requirement to work Sundays even thought it was found to be potentially discriminatory; the main reason being that there was no viable or practicable alternative of running the home effectively without requiring Mrs Mba to work Sundays. Alternative ways of achieving the employer’s legitimate aims must arguably be the focus of any inquiry into proportionality (in addition, in this case at least, to the employee knowingly having signed an employment contract requiring her to work on Sundays).