Sunday working and beliefs
Sunday working and the scope of protected beliefs
Last month the Court of Appeal ruled in Mba v Mayor and Burgesses of the London Borough of Merton that a council was justified in requiring a Christian to work on Sundays. At around the same time the Supreme Court ruled that Scientology is a religion, an Employment Tribunal (ET) allowed a claim to proceed for discrimination on grounds of a Labour party activist's philosophical beliefs in 'democratic socialism', and a Wiccan (witch) won her ET case for religious discrimination. These cases highlight the need for employers to be prepared to justify actions or policies which affect employees even with less mainstream beliefs (even if they stem from a mainstream religion) under the Equality Act 2010.
The decision in Mba is useful for employers considering refusing requests by employees not to work on specific days because of their religious beliefs. The London Borough of Merton (the Council) contractually required all employees at the children's home at which Mrs Mba worked to work on two out of three weekends over each three-week period. For two years the Council had accommodated Mrs Mba's wish not to work on Sundays, but subsequently required her to work as contractually obliged, although it had been prepared to organise the Sunday shifts to enable her to attend church.
Mrs Mba resigned and commenced proceedings in the Employment Tribunal (ET). Her indirect religious discrimination claim was eventually dismissed by the Court of Appeal, as the Council was able to objectively justify its actions (i.e. demonstrate that the requirement was a proportionate means of achieving a legitimate aim). However the case confirms these important principles:
- Cases of this nature are fact-specific and there is no one-size-fits-all approach. Here the need to provide 24/7 care to individuals with complex needs was highly relevant;
- It is relevant whether the employee's contract requires them to work on particular days and whether they have been promised any permanent arrangements to the contrary;
- Employees should be given the opportunity to suggest viable and practicable alternative proposals and employers should consider whether such proposals could be undertaken without significant disadvantage in terms of costs, quality and efficiency of service delivery. In this case there was no viable or practicable alternative to insisting on Sunday working;
- Evidence that an employer may have accommodated an employee's request in the past does not necessarily assist the employer;
- It is not likely to be appropriate to take into account whether the employee's particular religious belief is a "core component" of their faith. As the case of Ms Eweida and others showed, this is not relevant to claims under the European Convention on Human Rights. Although the Convention cannot be enforced directly in Employment Tribunals, UK law must be interpreted in line with Convention rights where possible, and will be directly engaged where the employer is an 'emanation of the state' (as the Council was in this case). Even under the UK's law on indirect discrimination, assessing whether it is a "core" belief is misleading. How many people hold the same belief may be relevant when considering whether the employer can justify the interference with the employee's religious beliefs (i.e. is the requirement proportionate balanced against its discriminatory impact?). A discriminatory impact on a larger group may make it harder for the employer to justify. Or, on the other hand, it may make the employer's insistence on Sunday working more necessary. Where a smaller group is affected, the beliefs may be easier to accommodate.
It is perhaps not surprising that cases are emerging concerning other religions such as paganism. The Supreme Court's ruling that Scientology is a religion was made in the context of wedding ceremonies, but is likely to mean it amounts to a 'religion' under the Equality Act 2010. The case of the Labour Party activist may be more surprising. It has been established that a mere opinion or viewpoint is not the same as a 'philosophical belief', nor is support of a political party. However in this case the individual's personal belief in 'democratic socialism' satisfied the tests of a 'philosophical belief' under the Equality Act 2010 as established in the case of Nicholson v Grainger Plc.