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23 January 2013

Sunday working and religious discrimination

The Employment Appeal Tribunal has recently held that an employer requiring a Christian to work on a Sunday was not, in this case, discriminatory.

The claimant in this case (Mba v The Mayor & Burgesses of the London Borough of Merton) worked in a residential care home for disabled children. Her contract of employment required her to work on Sundays, although this was against the claimant’s religious beliefs. The respondent was able to accommodate the claimant’s wishes for two years, until the care home became understaffed; at which point, the respondent began to rota the claimant for Sunday shifts.

The claimant argued that this provision or practice discriminated against Christians, and hence her, on grounds of religion or belief.  She refused to work on Sundays and disciplinary action followed, which included a final written warning. The claimant subsequently resigned.

Employment Tribunal decision

The claimant brought a claim for indirect discrimination on the grounds of religion and belief.  She argued that it was not necessary for her to work on Sundays, as agency workers or other employees could cover those shifts.  However, an employment tribunal decided that the employer’s aim in seeking to ensure that all full-time staff worked on Sundays in rotation was legitimate and objectively justified. The claim was therefore dismissed.

The claimant appealed to the Employment Appeal Tribunal (EAT).

EAT decision

On appeal, the EAT found that, although the tribunal had misdirected itself on the test for indirect discrimination, this made no difference to the outcome.

The EAT upheld the tribunal’s decision and held that the employer had (i) established a legitimate aim: the provision of appropriate staffing; and (ii) had justified a provision, criterion or practice (PCP) relevant to achieving that aim: the requirement for all staff to work on Sundays. Therefore, the claimant could not succeed in her claim that she had been discriminated against on the grounds of religion and belief. For those reasons, the appeal was dismissed.

Comment

This case was misleadingly reported in many newspapers (see for example, the Telegraph).  The EAT comments at the outset of the judgment: “anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed”.  As such, this decision should not be relied upon by employers as a general rule that all employees can be properly required to work on Sundays.  As the EAT emphasises in its decision, each case will need to be determined with regard to its specific circumstances.

A copy of the EAT judgment is available here.

For any employment enquiries please contact the Steeles Law employment team on employment@steeleslaw.co.uk or 01603 598000.