The Religion or Belief Regulations (now part of the Equality Act) state that employers cannot impose a provision, criterion or practice (PCP) which discriminates against a worker on the basis of their religion or belief, unless they can justify it. In Mba v The Mayor and Burgesses of the London Borough of Merton, the Employment Appeal Tribunal (EAT) held that the Council’s requirement for Ms Mba to work on Sunday was a proportionate means of achieving a legitimate aim.
Basic facts
Ms Mba, a Christian, worked in a children’s home providing short, residential breaks for children with serious disabilities and complex care needs. Three members of staff, who worked a rota system covering seven days a week, were required to be on duty at any one time.
For the first two years, the council managed to accommodate Ms Mba’s request not to work on Sundays. However, in 2009, it said she had to start working the normal rota. She lodged a grievance which was unsuccessful and as she did not work any of the Sundays she had been rostered, she was given a final written warning in early 2010.
When her appeal failed, she resigned at the end of May 2010 and claimed indirect discrimination on the basis that her employer had applied a PCP which discriminated against her as a Christian.
Tribunal decision
The tribunal said that the Council’s aim of ensuring an appropriate gender balance and seniority mix on each shift and its need to provide a cost-effective service in the face of budgetary constraints, fair treatment of all staff and continuity of care in staff looking after the children was legitimate and the PCP was a proportionate means of achieving that aim.
Ms Mba appealed on three grounds - that the tribunal was wrong when it said that resting on Sundays was not a core component of the Christian faith; that it had not applied the correct test of “anxious scrutiny or intensive review”; and that it should have put the onus on the employer, not her, to justify the proportionality test.
EAT decision
The EAT said that the tribunal’s comment that resting on Sunday was not a “core component” of Christianity had to be read in context. By using the expression “core” it was reflecting the evidence of an Anglican bishop that only some Christians felt they could not work on a Sunday.
As the tribunal was referring to the number of Christians who might work on Sundays (not what was important in terms of their faith), it was therefore appropriate to refer to it when weighing up the impact of the PCP. The greater the discriminatory impact on the group as a whole, the greater the onus on the employer to demonstrate that the PCP was necessary and proportionate.
The EAT also held that the tribunal had applied the proper test of “anxious scrutiny or intensive review” when assessing whether the PCP was justified. There was nothing about the way in which it had considered the issue of ‘proportionality’ which suggested that it was anything other than “properly scrupulous” in coming to its conclusions.
Likewise, the tribunal had clearly said that the burden was on the employer to show that the PCP was justified and that was how it had approached the case. Concluding that the PCP was proportionate did not indicate that the tribunal had taken the wrong approach.
The EAT held that the tribunal was right to find that the Council had a number of legitimate aims and that the PCP (that staff should work Sunday shifts when they were rostered to do so), was a proportionate means of achieving them.