Mba v Merton London Borough Council

Indirect discrimination requires justification by reference to the discriminatory impact of the provision, criterion or practice on the relevant group as a whole, while the individual claimant must establish personal disadvantage. The employer bears the burden of proving that the measure is a proportionate means of achieving a legitimate aim.

The tribunal or court, rather than the employer, decides whether objective justification is established. It must apply intense scrutiny and consider viable alternatives, including alternatives not proposed at the time, although the employer cannot be expected to address possibilities of which it was unaware and could not reasonably have been aware.

A tribunal must not assess qualitatively what is central to a religion. It may, however, consider evidence about how many adherents are affected when assessing the weight of the discriminatory impact.

The claimant was a residential care officer at a children’s home operated by the respondent. Her contract permitted Sunday working, but the respondent accommodated her wish not to work Sundays for about two years before requiring her to participate in the normal rota.

She refused Sunday shifts, received a final written warning and resigned. The Employment Tribunal held that the Sunday-working provision, criterion or practice pursued legitimate aims including continuity and quality of care, staffing balance, fairness and cost-effectiveness, and was objectively justified under the Employment Equality (Religion or Belief) Regulations 2003.

On appeal, the claimant challenged the tribunal’s approach to proportionality, its consideration of alternatives and its reference to Sunday abstinence as not being a core component of Christianity.

1. Appeal dismissed. The tribunal had correctly directed itself on objective justification. Its conclusion that the Sunday-working provision, criterion or practice was proportionate was open to it and was not perverse.
2. Under regulation 3(1) of the Employment Equality (Religion or Belief) Regulations 2003, the discriminatory impact relevant to justification is the impact on the protected religious group as a whole. The claimant must nevertheless show that she personally suffered the disadvantage. The employer bears the burden of proving objective justification.
3. The applicable approach requires intense scrutiny. The tribunal must decide for itself whether the provision, criterion or practice is justified. The employer’s contemporaneous reasoning may be relevant, especially in testing whether a later justification is genuine, but the tribunal is not confined to reasons considered by the employer when the practice was introduced.
4. The tribunal may consider alternatives raised for the first time at the hearing. An employer cannot reasonably be expected to have explored an alternative of which it was unaware and could not reasonably have been expected to know. This does not transfer the burden of justification to the employee.
5. The tribunal’s reference to the belief that Sunday should be a day of rest as not a core component of Christianity was inelegant but, read in context, did not amount to an impermissible qualitative judgment about religious doctrine. The tribunal was assessing the quantitative extent of the impact, on the evidence that only some Christians considered themselves obliged not to work on Sundays. A measure affecting a smaller part of the religious group may have a lesser discriminatory impact than one affecting the group generally, although the employer must still establish proportionality.
6. The respondent had established legitimate aims connected with staffing, gender and seniority balance, cost-effectiveness, fairness and continuity and quality of care. The tribunal was entitled to conclude that requiring Sunday work was proportionate in the particular circumstances.

• Employment Appeal Tribunal: The appeal against the Employment Tribunal’s decision was dismissed.