A provision put in place by a council care home requiring a worker who was a Christian whose genuine belief that Sunday was a day of worship and rest to work on Sundays as rostered discriminated against the worker but was a proportionate means of achieving the legitimate aim of running the care home effectively.

The Court of Appeal so stated, inter alia, when dismissing the appeal of the claimant, Celestina Mba, a care worker, against a decision of the Employment Appeal Tribunal on 13 December 2012 [2013] ICR 658 dismissing her appeal against a decision of an employment tribunal that the imposition by Merton London Borough Council of a requirement that staff in the care home run by the council work Sunday shifts as rostered was proportionate and thus her claim for indirect religious discrimination failed.

Care workers at a residential home for disabled children were required by the council to work three-week rotas, with each employee working two weekends in three. The claimant, a Christian, was employed on the basis that the council would take reasonable steps to accommodate her request not to work on Sundays, but after two years she was required to comply with the normal rota, and when she refused to work on Sundays she was disciplined and then resigned. She claimed that she had been discriminated against on the ground of her religion, contrary to regulation 3(1)(b) of the Employment Equality (Religion or Belief) Regulations 2003, contending that by requiring her to work on Sundays the council was applying a provision, criterion or practice which put persons of her religion or belief at a particular disadvantage when compared with persons who did not share that belief. The employment tribunal dismissed the claim, directing itself that, weighing the discriminatory impact on the claimant against the reasonable needs of the council, since the council was prepared to enable her to attend church on Sundays, and since her belief that Sunday should be a day of rest was not a core component of the Christian faith, rostering the claimant to work some Sundays was a proportionate means of achieving the legitimate aims of ensuring an appropriate gender and seniority balance on each shift, fair treatment of its staff and a cost-effective service, for the purposes of regulation 3(1)(b)(iii). The appeal tribunal dismissed the appeal.

MAURICE KAY LJ said that the primary issue on the appeal was whether, in carrying out the proportionality exercise, the employment tribunal had been entitled to give weight to its finding that the claimant’s belief that Sunday should be a day of rest and worship was “not a core component of the Christian faith”. The Employment Appeal Tribunal had found that there was no error of law in the tribunal’s reasoning. His Lordship did not agree. Regulation 3(1)(b)(i) envisaged a provision, criterion or practice (“PCP”) which applied or would apply equally “to persons not of the same religion or belief” as the claimant and which put 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 were described in the plural—“persons”—was the reason why the test was sometimes described as one of “group disadvantage”. However, the use of the disjunctive—“religion or belief”—demonstrated that it was not necessary to pitch the comparison at a macro level. Thus it was not necessary to establish that all or most Christians, or all or most non-conformist Christians, were or would be put at a particular disadvantage. It was permissible to define a claimant’s religion or belief more narrowly than that. In his Lordship’s judgment, that was where the employment tribunal had gone wrong. In describing the claimant’s Sabbatarian belief as “not a core component of the Christian faith” it had opened the door to a quantitative test on far too wide a basis. It was clear that, for some Christians, working on Sundays was unacceptable. It was also clear that the claimant’s religious belief genuinely embraced that injunction. On that basis, it seemed to his Lordship that the employment tribunal should have found that the application of the Sunday working PCP satisfied regulation 3(1)(b)(i), with the consequence that the real issue in the case was whether the council could show “a proportionate means of achieving a legitimate aim”, pursuant to regulation 3(1)(b)(iii). In his Lordship’s judgment there was no need to venture into the Strasbourg jurisprudence on article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms or recent decisions of the Court of Justice of the European Union which, the claimant submitted, demonstrated a growing emphasis on protecting the dignity of religious belief. The proportionality test set out in regulation 3(1)(b)(iii) was derived from Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. The test was more stringent (in the sense of more favourable to an employee) than that which had been applied in relation to article 9 of the Convention. Elias and Vos LJJ took a different view about the relevance of article 9. Theirs was a more sophisticated analysis. His Lordship agreed that article 9 did not carry a requirement of group disadvantage, and preferred not to resort to reading down, for Convention reasons, a domestic provision which was compliant with Directive from which it was derived. His Lordship was not convinced that giving regulation 3 its natural meaning would involve a breach of article 9.

There was also force in the claimant’s submission that, to the extent that the tribunal, in carrying out the proportionality exercise, had accorded weight to the facts that the council had made efforts to accommodate the claimant for two years and was still prepared to arrange her shifts in a way that enabled her to attend her church to worship on Sundays, it had taken into account factors which were irrelevant to the issue of proportionality. Although it had been necessary for the tribunal to address those points for other purposes, their materiality in relation to proportionality, once the prima facie elements of indirect discrimination were made out, were somewhat exiguous. Also, the reference to enabling her to attend Church on Sunday ignored the other aspect of her belief, namely that she should not work on Sunday.

However, after the most anxious consideration, his Lordship had come to the conclusion that, in all the circumstances of the case, and notwithstanding the legal errors, the decision of the employment tribunal that the imposition of the PCP was proportionate was “plainly and unarguably right”. In truth, once the council had established that there was really no viable or practicable alternative way of running the care home effectively, there was only ever going to be one outcome to this case. The legal error could have made no difference.

ELIAS LJ agreed that the appeal should be dismissed notwithstanding the errors in the tribunal’s judgment. However, in his Lordship’s judgment, it was the article 9 dimension of the case which made it inappropriate for the tribunal, when assessing justification, to weigh in the employer’s favour the fact that the claimant’s religious belief was not a core belief of her religion so that any group impact was limited.

VOS LJ agreeing in the result, preferred the reasons given by Elias LJ on the two central questions on which he disagreed with Maurice Kay LJ. First, In the absence of the application of article 9, the question of whether the refusal to work on Sunday was or was not a core component of the Christian faith might be relevant to the question of proportionality under regulation 3(1)(b)(iii). Secondly, article 9 had the effect in the present case of making it irrelevant, for the purposes of determining proportionality, to examine whether the refusal to work on Sunday was a core component of the Christian faith. His Lordship regarded the question of whether Sabbatarianism was a core component of the Christian faith to be equivalent to the more easily understood question of whether the belief was widely held amongst the Christian population. Whichever way it was put, it was the quantitative question to which the Appeal Tribunal had referred.