Mba v London Borough of Merton

The Court of Appeal considered an appeal against Employment Tribunal and Employment Appeal Tribunal decisions rejecting claims for constructive unfair dismissal and indirect religious discrimination brought by a practising Christian who refused Sunday shifts. The central legal issue was indirect discrimination under regulation 3(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003 and, in particular, whether the requirement to work Sunday shifts (the provision, criterion or practice or "PCP") could be justified as a proportionate means of achieving a legitimate aim.

The court held that the Employment Tribunal erred in law by treating the claimant's Sabbatarian belief as "not a core component of the Christian faith" and thereby importing an impermissible quantitative test into the group-disadvantage inquiry. The court emphasised that a claimant's genuinely held belief may properly be defined narrowly so as to satisfy the group-disadvantage element of regulation 3(1)(b)(i), leaving justification under regulation 3(1)(b)(iii) as the real issue.

Despite the legal error, the appeal was dismissed because, on the facts found by the Employment Tribunal (not challenged on appeal), there were no viable or practicable alternatives to requiring the claimant to work on Sundays and the Tribunal's conclusion that the PCP was a proportionate means of achieving the Council's legitimate aim was plainly and unarguably right.

Background and facts:

• The claimant, Mrs Celestina Mba, is a practising Christian with a sincere Sabbatarian belief that Sunday should be reserved for worship and not for paid work. She was employed as a care assistant at Brightwell, a children’s home run by the London Borough of Merton, under a contract that required staff to work weekends and Sundays as rostered.
• After management began rostering her for Sunday work she refused to work certain Sundays, raised a grievance which was rejected, faced disciplinary proceedings and received a final written warning. She resigned in May 2010 and brought proceedings alleging constructive unfair dismissal and indirect religious discrimination.

Procedural posture:

• Employment Tribunal (ET): identified the PCP as the requirement to work Sunday shifts as rostered and accepted the employer had a legitimate aim in staffing and service delivery. The ET found the PCP proportionate and dismissed the indirect discrimination claim, in part on reasoning that the claimant's Sabbatarian belief was not a "core component" of the Christian faith and that the employer had made efforts to accommodate her.
• Employment Appeal Tribunal (EAT): dismissed the claimant's appeal, describing paragraph 88 of the ET's decision as inelegant but, read in context, acceptable.
• Court of Appeal: permission to appeal granted. The Court considered whether the ET had erred in law in its proportionality reasoning and the relevance of Article 9 ECHR to the statutory test.

Issues before the Court:

1. Whether the ET was entitled, in the proportionality assessment under regulation 3(1)(b)(iii) of the 2003 Regulations, to give weight to findings that (i) the employer had attempted accommodation for two years, (ii) would still allow church attendance, and (iii) the claimant's Sabbatarianism was not a "core component" of the Christian faith.
2. How regulation 3(1)(b) should be interpreted in light of established authority on religious belief and the possible relevance of Article 9 ECHR (via the Human Rights Act 1998 s.3).

Court's reasoning and disposition:

• The Court held that the ET erred in treating the claimant's Sabbatarian belief as not being capable of constituting the group disadvantage required by regulation 3(1)(b)(i). The proper approach allows the claimant's religion or belief to be defined narrowly so that the PCP may be shown to disadvantage persons of the same religion or belief as the claimant.
• The Court further held that the ET gave undue weight to matters of limited relevance (the prior accommodation and facilitation of worship) in the proportionality balancing and that it should not have relied on the claim that the belief was not a core component of Christianity so as to weaken the claimant's position. The Court discussed the interplay between the domestic statutory test and Article 9, concluding Article 9 did not require a different outcome but that Article 9 considerations could inform interpretation.
• Applying the Dobie principle, the Court concluded that, despite those legal errors, the ET's conclusion that the PCP was proportionate was plainly and unarguably correct on the facts: the contract obliged Sunday working and there were no viable or practicable alternatives that would have avoided significant disadvantage to the employer's service delivery.

Appeal dismissed. The Court found that the Employment Tribunal erred in law by treating the claimant's Sabbatarian belief as "not a core component" of Christianity and by giving weight to peripheral factors in the proportionality assessment under regulation 3(1)(b)(iii) of the Employment Equality (Religion or Belief) Regulations 2003. However, the court applied the Dobie principle and concluded that the Tribunal's ultimate finding of proportionality was plainly and unarguably correct on the facts, so the error did not require quashing the decision.

Employment Tribunal decision (initial forum) -> Employment Appeal Tribunal UKEAT/332/12SM (appeal dismissed) -> Court of Appeal [2013] EWCA Civ 1562 (appeal dismissed).