Friday 11 January 2013

Religious Discrimination: Sunday Working for Christians

Is it discriminatory to require a Christian care worker to work on a Sunday?

Not here, held the EAT in Mba v The Mayor & Burgesses of the London Borough of Merton.

Ms Mba worked in a home providing residential care to disabled children with complex care needs.  The home was understaffed.  Ms Mba's contract required her to work on Sundays, but her beliefs forbade this. Merton began to rota her for Sunday shifts.

The EAT found that the tribunal had misdirected itself on indirect discrimination, but this made no difference to the outcome.  What should have been considered, per R (Elias) v Secretary of State for Defence and the ECJ case of Bilka-Kaufhaus GmBH v Weber von Hartz was not the discriminatory impact of a provision, criterion or practice ('PCP') in respect of a given Claimant but the discriminatory impact of that PCP in respect of a group (here Christians) taken as a whole.

In that context, it was permissible for the tribunal to consider whether refusal to work on a Sunday was a 'core' tenet of Christian faith, as this would affect the total number of people who might be impacted by such a decision.

The question of whether a PCP was justified is one for the tribunal, to be considered with 'anxious scrutiny', and with the onus on the employer to justify the discrimination.

Langstaff P stresses in the judgment that anyone looking for either 'a ringing endorsement of an individual's right not to be required to work on a Sunday [..] or an employer's freedom to require it on the other' will be disappointed, and that each case turns on its own facts.

It should also be noted that the ECHR decision on Eweida, Ladele etc is due on Tuesday, and this may change the relevant law.

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