Rebecca Stephen of Pinsent Masons, the law firm behind Out-Law.com, was commenting as the Employment Appeal Tribunal (EAT) published its judgment in the case of Celestina Mba, who had claimed that she had been forced to leave her job with Merton Borough Council for refusing to work on Sundays. Stephen was responding to initial press coverage surrounding the case, which had suggested that the ruling meant that Christian employees no longer had the right to refuse to work on Sundays.
"This case does not establish, as some earlier reports may have suggested, that Christians will fail in a claim for religious discrimination where they are required to work on Sundays on the basis that not all Christians consider that Sunday is a day to abstain from work - each case will always turn on its facts," Stephen said.
"Indirect discrimination is 'group discrimination' in that other people who are of the same religion as the claimant, as well as the claimant herself, must be put at a disadvantage by an employer's actions in order to get a claim off the ground. However, a claim will not fail because not all members of that faith share some particular manifestation of that religion. In this case, the EAT accepted evidence that only some Christians felt obliged by faith to avoid work on Sundays. This was relevant evidence not to whether Ms Mba could show that she had been placed at a disadvantage, which she could; but when applying the justification test."
Indirect sex discrimination can occur where an apparently neutral provision is applied in a way that puts workers with a particular protected characteristic, such as gender or religious belief, at a particular disadvantage compared to those who do not have that characteristic. However, it is a defence if an employer can show that the provision is objectively justified.
Stephen said that this was a "high hurdle" for employers, who had to be able to show that they went "no further than necessary" to achieve a legitimate 'business case'.
"The tribunal will closely scrutinise both the business case and whether it goes further than necessary," she said. "In this case, it was accepted that there was a legitimate aim – the need for a gender balance and seniority mix on shifts; the need to provide a cost effective service in light of budgetary constraints by cutting down on the use of expensive agency and 'bank' staff at weekends; fair treatment for all staff and continuity of care for the children at the care home."
"When it came to proportionality, the tribunal was mindful that the employer had already sought to accommodate Ms Mba for two years and had agreed to arrange the shifts so as to enable her to attend church every Sunday to worship," she said.
Mba was employed as a care worker in a children's home under a contract which enabled the council to require her to work on Sundays. Merton Borough Council accommodated her wishes as a Christian not to do so for two years, but later required her to work as contractually obliged. The original employment tribunal found that the council's aim in seeking to ensure that all full-time staff worked on Sundays in rotation was legitimate and objectively justified, and the EAT upheld this decision.
Although making no difference to the outcome of the case, the EAT added that when coming to a decision on whether indirect discrimination was occurring the original tribunal should have considered the discriminatory impact of Sunday working on Christians as a whole, rather than on the particular claimant. The tribunal had suggested that not working on Sundays was not a "core" component of the Christian faith, citing evidence from an Anglican bishop that only some Christians felt obliged to abstain from Sunday working.
"It was thus permissibly commenting on the degree to which Christians numerically would be affected, and not attempting to tell them what was important in their faith," the judgment said.
In his ruling, Mr Justice Langstaff sought to "make it clear" that the judgment would not settle the "broad general issue" of whether workers could be obliged to work on Sundays.
"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," he said.