The EAT ruled last week on whether an employer should have accommodated a Christian employee’s request to not work on Sundays. It is easy to conclude that it held that Christians have no right to refuse to work on a Sunday as it is “not a core requirement of the faith”. However, that would be over-simplifying the decision to some extent. No doubt anticipating moves to ride whichever bandwagon the decision would otherwise create, the Judge said that he “should make it clear …..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 issue arises. The questions raised must be determined in the specific circumstances of this particular case alone”. One in the eye for the Daily Mail crowd, then.
Celestina Mba, had requested not to work Sundays while she was working for Merton Council in South West London. The Council had originally arranged matters so she would not have to work Sundays. However other staff moves meant that things changed and her rota was altered to include some Sundays.
She claimed this was religious discrimination. Her employers threatened her with disciplinary action unless she agreed to compromise her Sunday commitments, and she resigned claiming constructive dismissal in addition to indirect discrimination on religious grounds. Put shortly, the question then was whether making her work that shift was a proportionate means of achieving what the Tribunal found to be the legitimate aim of maintaining cover with an appropriate mix of seniorities and genders. That meant balancing the adverse impact on Mba and others with similar convictions about the evil of Sunday working against the need to achieve that aim. That in turn meant considering how many Christians held that strength of view on the point. Some unhappy phrasing in the Tribunal’s decision had suggested that it had taken it upon itself to decide whether Sunday working offended any core tenet of that faith. The EAT was able to read this as considering the proportionality question instead and so the decision stood.
The Judgement stated that if a measure had been implemented which affected almost all Christians in the work place it would be more likely to be considered to be discriminatory than a measure which only affected one or two members of staff. The Church has stated that Sunday as a ‘day of rest’ is being watered down, and this ruling could be argued to add weight to this argument. However in the light of the legitimate business need, the employers argued in this case it is more than justified. The Council had a duty to meet the needs of the disabled children who the care workers were assigned to, and it was necessary for Mba to work Sundays in order to do her job.
Some commentators have criticised the decision, especially in light of the fact that Mba offered to work unsociable hours and take reduced pay. However, despite the Judge’s opening words above, this decision will be welcomed by employers in the care sector and in the NHS where 24/7 services are offered and the workforce is expected to be flexible to operate in accordance with the public’s needs.
