Council could justify requirement for Christian care worker to work on Sundays

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The recent EAT decision in Mba v Mayor and Burgesses of the London Borough of Merton did not attract quite the same amount of media interest as that of Eweida but it makes interesting reading nevertheless.

Ms Mba, a Christian, worked for Merton as a residential care officer at a children's home which provided short breaks for children with serious disabilities and complex care needs. The home was open seven days a week and staff worked on a rota which meant that they worked one long week that is, seven consecutive days, one regular week that is, five days on and two days off; and one short week which meant three days on and four days off.

There was a contractual requirement for Ms Mba to work on Sundays, but because of her religious belief she was reluctant to do so and Merton met her concerns by allowing her to work every Saturday. In return, Ms Mba was able to take Sundays off. Subsequently, Ms Mba was asked to work the occasional Sunday but refused. After receiving a final written warning, she resigned and brought an indirect religious discrimination claim.

The Employment Tribunal dismissed the claim on the basis that Merton could objectively justify the requirement that all care workers work on Sundays. Merton had legitimate aims in requiring Sunday working. For instance, it wanted to ensure an appropriate gender balance and an appropriate mix of seniority on each shift as well as providing continuity of care.

Interestingly, Ms Mba had argued that Merton should have used bank or agency workers or recruited another female permanent employee to accommodate her concerns about Sunday working but the Employment Tribunal took into account that Merton had to run a cost-effective service at a time of financial constraints. It also took into account that other staff had to cover the Sunday shifts disproportionately and that for two years, Ms Mba had not been required to work Sundays.

Although Ms Mba held strong religious beliefs, not working on a Sunday was not a core component of the Christian faith because many Christians did in fact work on Sundays.

The EAT dismissed Ms Mba’s appeal.

It is important to note though that each case needs to be considered on its own facts. Indeed, the EAT stated "We should make it clear at the outset of this judgment to 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. No such broad general issue arises".

The relevant issue here was whether or not Merton could justify its requirement for Sunday working in these circumstances and, on the facts, it could.