MBA v London Borough of Merton

When an employer seeks to justify a provision which indirectly disadvantages an employee’s religious observance, the tribunal must balance its discriminatory impact against the employer’s legitimate needs and consider practicable alternatives.

Where European Convention on Human Rights article 9 is engaged, the fact that the employee’s sincere belief is not widely shared, or is not described as a core belief of the religion, cannot weaken the employee’s case on justification. The number affected may nevertheless matter if it alters the practical difficulty of accommodating the belief.

An appellate court may uphold the result despite errors in that assessment where the correct outcome is plainly inevitable.

The appellant, a care assistant at a residential home for children with serious disabilities, sincerely believed that she should neither work nor merely refrain from worship on Sundays. Her contract nevertheless required weekend work when rostered. After the Council began rostering her on Sundays, disciplinary proceedings culminated in a final warning and she resigned.

The Employment Tribunal rejected claims for constructive unfair dismissal and indirect religious discrimination. It found the Sunday-working requirement justified, relying partly on the Council’s previous accommodation, its willingness to facilitate church attendance, and its view that Sabbatarian observance was not a core component of Christianity. The Employment Appeal Tribunal dismissed her appeal in UKEAT/332/12SM.

The Court of Appeal considered whether those matters were legally relevant to proportionality under regulation 3(1)(b)(iii) of the Employment Equality (Religion or Belief) Regulations 2003, and whether any errors required the decision to be set aside.

1. Appeal dismissed unanimously. The Employment Tribunal erred in treating all three matters identified in paragraph 88 of its decision as supporting the Council’s justification defence. The errors were nevertheless immaterial because the tribunal’s unchallenged findings established that no viable or practicable alternative would permit the children’s home to operate effectively. A properly directed tribunal would inevitably have reached the same result.

2. The Council had a legitimate aim in maintaining effective, continuous care with appropriate staffing, cost and service quality. Justification under regulation 3(1)(b)(iii) of the Employment Equality (Religion or Belief) Regulations 2003 required the discriminatory impact of the Sunday-working requirement to be balanced against those needs. The absence of a viable alternative made the requirement proportionate.

3. The Council’s earlier efforts to avoid rostering the appellant on Sundays did not answer whether permanent accommodation was required. Its willingness to permit church attendance also failed to address the distinct belief that no paid work should be performed on Sunday. Those considerations demonstrated good faith but did not materially answer the proportionality question.

4. Per Elias LJ, with whom Vos LJ agreed on this issue, the potential extent of a policy’s impact may ordinarily be relevant to proportionality in domestic indirect-discrimination law. A policy affecting a larger group may have a greater discriminatory impact, although the number affected may also make accommodation more difficult. The significance of numbers is therefore contextual and may be marginal.

5. Where article 9 of the European Convention on Human Rights is engaged, regulation 3(1)(b)(iii) must, pursuant to section 3 of the Human Rights Act 1998, be read compatibly with the individual right to religious freedom. The fact that the belief is not widely shared, or is not a core belief of the religion, cannot count against the employee. A small number of adherents may instead make accommodation easier. Maurice Kay LJ agreed that the tribunal’s reliance on the supposed absence of a core belief was erroneous, although he preferred not to determine the article 9 interpretative issue without full argument.

6. Applying the principle in Dobie v Burns International Security (UK) Ltd [1984] ICR 812, the legal errors did not justify quashing and remitting a decision which was plainly and unarguably right.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2013] EWCA Civ 1562. Although the tribunals had erred in their proportionality reasoning, the Employment Tribunal’s conclusion was plainly and unarguably right.
2. Employment Appeal Tribunal: The appeal in UKEAT/332/12SM was dismissed. The EAT treated the Employment Tribunal’s reference to a belief not being a core component of Christianity as inelegant language addressing the number of Christians affected.
3. Employment Tribunal: The contractual case, constructive unfair dismissal claim and indirect religious discrimination claim were rejected. The Sunday-working requirement was found to be a proportionate means of achieving the Council’s legitimate aim.