Dr Mark Butler
The recent decision of Mba v London Borough of Merton  EWCA Civ 1562 saw the Court of Appeal once again have the opportunity to consider the issue of religious discrimination; this time due to a complaint brought by a worker who complained that having to work on a Sunday was treating her less favourably due to her Christian beliefs, with her belief that Sunday should be a day of rest being a “Core Christian Belief”.
A dispute arose between Ms Mba and her employers when she was required to work on weekends, which included Sundays, in line with a contractual provision that she was
“… to undertake duties outside normal working hours as required by the shift rota including weekends, Bank holidays and sleeping duties.”
During her initial employment it appears that Ms Mba was never required to work on a Sunday, with management being sensitive to her religious beliefs and accommodating this; however, when this position changed, Ms Mba raised a grievance, which was subsequently rejected by her employers. When the Council continued to roster her to work on a Sunday, which Ms Mba refused to work, she was subjected to disciplinary proceedings, which ultimately led to her resignation. Ms Mba pursued claims for constructive unfair dismissal, which was rejected by the Employment Tribunal, and religious discrimination, which was the focus of the hearing in the Court of Appeal.
The statutory framework regulating religious discrimination in the UK which was relevant to this case was Regulation 3 of the Employment Equality (Religion or Belief) Regulations 2003, provided:
“(1) For the purposes of these Regulations, a person (A) discriminates against another person (B) if –
(a) on grounds of religion or belief, A treats B less favourably than he treats or would treat other persons; or
(b) A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but –
(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,
(ii) which puts B at that disadvantage, and
(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.”
Although religious discrimination is now protected under the Equality Act 2010, the substance is essentially the same. Ms Mba also raised arguments under Article 9 of the European Convention on Human Rights, which contains the “qualified right to freedom of religion, including the right to manifest one’s religion, either alone or in community with others and in public or private, in worship, teaching, practice and observance”; however, due to the limited statutory jurisdiction of the Employment Tribunal on human rights issues, this could only be considered in relation to interpreting this provision in light of human rights law, pursuant to section 3 of the Human Rights Act 1998.
The ET decision
The employment tribunal approached the issue in a standard way as far as discrimination claims are concerned:
(i) it identified what the provision, criterion or practice (“PCP”) was, that being a requirement that staff be rostered to work Sunday shifts;
(ii) it then identified the aim behind the PCP, which concerned impact upon the business and the need to keep the business running effectively
(iii) before considering whether the approach adopted was a proportionate means to achieve the legitimate aim.
It is in relation to proportionality that the Appeal focussed upon, with the Tribunal being obliged to balance the discriminatory impact on Ms Mba against the reasonable needs of her employer’s business.
At paragraphs 81-86 of the ET decision, a number of alternative proposals were advanced on Ms Mba’s behalf, each of which were accepted as viable alternatives; however, which would have achieved the same aim but “… at a significant disadvantage to [the Council] in terms of costs, quality and efficiency of service delivery”. The Court of Appeal had no issue with these findings.
It is in relation to findings noted at paragraph 88 of the ET which caused concern to the Court of Appeal. The ET noted that:
“88. … we also need to weigh in the balance the discriminatory impact of the PCP upon [Mrs Mba]. We accept that the PCP impacted on her genuinely and deeply held religious belief and observance … However, in terms of the degree of disadvantage to her, we bear in mind the following particulars:
(i) [the Council] did make efforts to accommodate her in this respect for two years;
(ii) [the Council] was in any event prepared to arrange the shifts in a way that enabled her to attend church to worship each Sunday; and
(iii) Her belief that Sunday should be a day of rest and worship upon which no paid employment was undertaken, whilst deeply held, is not a core component of the Christian faith … As much is as accepted in terms as … Bishop Nazir-Ali’s witness statement …, where he states that some Christians will not work on the Sabbath. To approach the matter in this way does not involve a secular court impermissibly adjudicating in evaluative terms upon religious beliefs …, as opposed to simply proceeding on the basis of evidence before it as to the components of the Christian faith.”
Consequent to weighing up these factors, the ET concluded that the PCP was objectively justified in accordance with Regulation 3 of the 2003 Regulations.
Court of Appeal
The Court of Appeal had no issue with the approach adopted by the ET in reaching its decision, with Elias LJ only granting permission to appeal on a narrow point relating to the approach evident in paragraph 88 and the inclusion of the “core belief” factor.
Kay LJ, giving the lead judgment, took account of Lord Nicholls’ seminal judgment on the issue of religious doctrine in R (Williamson) v Secretary of State for Education and Employment  2 AC 246, where it is stated that enquiries into a claimant’s professed belief is “a limited inquiry”, with a focus on whether it is made in good faith, rather having to
“…embark on an inquiry into the asserted belief and judge its ‘validity’ by some objective standard such as the source material upon which the claimant founds his belief on the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of others professing the same religion.”
He further stated that religious belief is
“intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some…”
In doing so he identified that not only will there be diversity of belief between religions, but also within, which brought into question whether the EAT were correct in affording weight to the finding that Ms Mba’s belief that Sunday should be a day of rest and worship “is not a core component of the Christian faith”.
It is paragraph 17 that is the crucial findings of Kay LJ in this appeal, where he stated that:
“Regulation 3(1)(b)(i) envisages a PCP which applies or would apply equally “to persons not of the same religion or belief” as the claimant and which puts or would put “persons of the same religion or belief” as the claimant at a particular disadvantage when compared with other persons. The fact that those at the requisite particular disadvantage are described in the plural – “persons” – is the reason why the test is sometimes described as one of “group disadvantage”. However, the use of the disjunctive – “religion or belief” – demonstrates that it is not necessary to pitch the comparison at a macro level. Thus it is not necessary to establish that all or most Christians, or all or most non-conformist Christians, are or would be put at a particular disadvantage. It is permissible to define a claimant’s religion or belief more narrowly than that. In my judgment, this is where the ET went wrong. It described Mrs Mba’s Sabbatarian belief as “not a core component of the Christian faith”. By so doing it opened the door to a quantitative test on far too wide a basis” (para 17).”
Interestingly, Kay LJ ultimately concludes that there was only one outcome to this case once it was established that there were no viable alternatives to run their business open to the Respondents.
Adopting a slightly different approach to Kay LJ, Elias LJ (with whom Vos LJ agreed) reaches the conclusion that a comparison between groups was not necessary where religious freedom under Article 9 was engaged, since this does not require the complainant to establish a group disadvantage. Interestingly though, Elias LJ did indicate that if this case was decided solely on domestic legislation grounds, then this would have been a legitimate factor to be considered,
However, in avoiding the need to interpret the domestic legislation in a manner to disapply the need for group disadvantage, which on the face of it does not look possible, Elais LJ focussed on the proportionality test, which could be read compatibly with Article 9. In doing so Elias LJ concluded that the justification defence could not thus be weakened through taking into account a factor such as whether her belief was widely shared or was not a “core” belief. Both Elias LJ and Vos LJ indicated that it was not the extent that the belief was shared within a religion that mattered, but whether it was a sincere belief, and effectively concluded that this was not therefore a suitable factor to be taken into account.
Despite the error of law that was established, all three members of the Court of Appeal held that the tribunal’s decision was still correct, since the offending factor does not appear to have materially affected the ultimate conclusion.
Despite the decision, this case has importance for one reason in particular. It further weakens the process that was witnessed none more so than in Eweida, that a simple focus on “core beliefs” was not enough. An employer cannot simply ignore a particular belief as other workers in their workforce of the same religion have no objection to that particular arrangement. This is a protection that can be afforded to the minority and not just simply the majority.
Mark Butler (@m_butler1) is a Lecturer in Law at Lancaster University Law School, a fully qualified non-practising barrister, and the co-author of European Employment Laws. His research interests are centred on UK employment law and EU Labour law, with a particular emphasis on employee rights. He is currently conducting research in the area of age discrimination, viewing the protections afforded to workers through comparative analysis.
You can find out more about Mark’s research at http://www.lancaster.ac.uk/fass/law/profiles/mark-butler