Mba v Mayor and Burgesses of the London Borough of Merton ET/2350743/10
Date added: 26 April 2012
religion or belief discrimination | indirect discrimination | Christianity | working on Sundays
In this decision on the manifestation of religious belief in the workplace, the tribunal held that the employer’s business requirements outweighed the Christian claimant’s desire not to work on Sundays because she believes that it is a day of worship and rest.
This case provides a good example of how employers should deal with an employee whose religious beliefs conflict with workplace requirements.
Employers do not have to do everything possible to accommodate the employee’s wishes. Employers should act reasonably and, if they cannot accommodate the employee in full, consider and offer alternatives.
At the time of the tribunal hearing, there were no notes available of Ms Mba’s job interview, where she mentioned her religious beliefs. Employers should always take accurate records of interviews, which may be important evidence if the employee later brings a tribunal claim.
Ms Mba is a practising Christian, and believes that Sunday is a holy day on which engaging in rest and religious observance is required by the Ten Commandments. On Sundays, she attends church services and carries out a ministering role in the community. In July 2007, she began work as a residential care officer at Brightwell, a registered children’s home, which provides short residential breaks (on average, between two and four days) for children with serious disabilities and complex care needs.
At the relevant time, the home was generally open 24 hours a day, seven days a week. The respondent operated a shift rota organised according to certain operational requirements, including those of the “National minimum standards for care homes”. These require that the staff group in day-to-day contact with children should include staff of both genders wherever possible, and that staff left in charge have “substantial relevant experience”. The standards also emphasise the importance of continuity of care for children.
The shift rota was prepared by the home’s deputy manager, Ms Lawson, in a way that she thought was fair to staff. For example, no one had to do an excessive amount of weekend work, which was unpopular. When Ms Mba started work at the home, there were nine full-time positions, only five of which were occupied (including her position). The vacant positions were covered by agency and bank staff.
The tribunal found that, during Ms Mba’s job interview, Mr Deegan (the home manager) explained that, as per the job description, all staff needed to work a shift rota that included weekends. Ms Mba said that she would have “some difficulties” working on Sundays due to her church-related activities. She did not say – and Mr Deegan did not appreciate that – her religious beliefs meant that she could never work on Sundays.
The tribunal found that Mr Deegan indicated to Ms Mba that it would be possible to accommodate her commitments. Whether or not he used the word “temporary”, this was what he meant, and he did not say anything about a permanent change to the usual rota requirements for her. The tribunal found that Ms Mba genuinely believed at the time that her religious beliefs would be “accommodated in full”, but that this was a case of her “hearing [what] she wanted to hear”. Her contract set out the shift times, and stated that shifts would be “as dictated by [the] manager to meet the needs of the service”.
In an email to Ms Mba dated 8 August 2007, Ms Lawson said that she understood that Ms Mba had church commitments that made working on Sundays “difficult”. She said that, although a contractual change was not possible, provided that the home was still using agency and bank staff it was “likely to be possible” that the rota could be organised so that Ms Mba worked every Saturday and had every Sunday off. She said that Ms Mba might occasionally need to use an annual leave day to “facilitate this arrangement”. Ms Lawson said that she had drafted the rota until Christmas 2007, and saw no potential problems with Ms Mba’s not working Sundays until then.
In 2008, Ms Lawson started rostering Ms Mba for Sundays, but marked them as part of her annual leave, because she was becoming concerned about the length of time that the arrangement had lasted, and because she wanted to be fair to the other staff. Ms Mba was working three weekend days in each three-week shift cycle (three Saturdays and no Sundays), whereas they were working four weekend days.
On 11 March 2008, Ms Mba emailed Ms Lawson. She said that it saddened her greatly to have to use annual leave to “worship the Almighty God”, and asked management to reconsider. In spring 2008, Mr Deegan told Ms Mba that he was planning to recruit more permanent staff and, the tribunal found, that he would ask candidates whether or not they would be prepared to work on Sundays, to cover her Sunday shifts. In the event, he was unable to recruit any more female permanent employees during Ms Mba’s employment.
Around September 2008, Mr Deegan offered Ms Mba the choice of working either morning or night shifts when she was rostered on a Sunday, rather than the usual mixture, so that she could carry out her religious commitments. The tribunal found that, at this stage, Mr Deegan had not yet appreciated that Ms Mba objected to working at all on Sundays. Ms Mba rejected the proposal.
Around the same time, Mr Deegan told Ms Mba that the cost of using agency workers to cover her Sunday shifts was “unsustainable”, but agreed that she would not be required to work on Sundays for three more months, until the end of 2008. Mr Deegan confirmed his position in an email dated 1 October 2008, saying that he believed management had been “incredibly flexible”, and noting that Ms Mba had not worked any Sundays to date. He said that, from January 2009, he expected her to honour her contract and work in the same manner as the rest of the team. Ms Mba remained free to swap shifts with other permanent staff, provided that the operational requirements such as balance of seniority and gender were maintained. The tribunal rejected any suggestion that Mr Deegan’s decision in his email of 1 October 2008 was motivated by any hidden agenda or hostility toward Ms Mba or her beliefs.
In December 2008, Ms Mba remained unhappy with Mr Deegan’s position, and he escalated the matter to his manager, Ms Songui, who treated it as an informal grievance. On 17 February 2009, she wrote to Ms Mba with her conclusions. She set out why the arrangement was problematic for the home and said that, although she believed that management would be willing, where possible, to accommodate requests in respect of particular faith days, having specific weekly days off could not be guaranteed. Ms Songui confirmed that Ms Mba would be rostered to work two weekends in three from 30 March 2009 and that, if she wanted to take annual leave or swap shifts with colleagues on Sundays, this would be considered in light of other employees’ leave requests and the needs of the service.
Ms Mba’s appeal against this decision was rejected by another manager, Mr Wyatt, who confirmed that she would be rostered according to the normal schedule from 13 July 2009. The tribunal found that, by this time at least, it was apparent to Mr Deegan that Ms Mba held a religious belief that she should not work at all on Sundays.
Despite a reminder from Mr Deegan, Ms Mba did not attend work on 26 July 2009, which was the first Sunday that she was rostered for after Mr Wyatt's decision. On 7 August, Mr Deegan wrote to Ms Mba again, stating that she was scheduled to work on Sunday 9 August, and that this was a management instruction. He warned her that he would be forced to consider disciplinary action if she did not comply. Ms Mba failed to attend for Sunday work on 9 August, 20 and 27 September, and 18 October 2009. Mr Deegan issued Ms Mba with a second management instruction, but she did not attend for Sunday work on 1, 8 and 22 November, and 20 December 2009, and 3 and 10 January 2010, despite being paid for those days.
A disciplinary hearing took place on 29 January 2010. On 4 February, the disciplinary officer, Ms Hignett, wrote to Ms Mba with her decision. She accepted management’s case regarding the difficulties that would be posed if Ms Mba were allowed permanently to avoid working on Sundays, and said that management had been flexible and Ms Mba inflexible. She had found nothing to support Ms Mba’s allegation that Muslim staff had been treated more favourably in being allowed time off for Friday prayers. She described Ms Mba’s behaviour as potential gross misconduct, but concluded that the appropriate sanction in the circumstances was a six-month written warning. Ms Mba appealed. Some of her points were dealt with as a grievance, which was rejected, as was her appeal against the disciplinary sanction. On 30 May 2010, Ms Mba resigned, stating that there was a “direct conflict between [her] faith…and Sunday work at Brightwell”. She claimed indirect discrimination on the ground of religion or belief, and constructive dismissal.
The respondent agreed that it had applied a provision, criterion or practice (PCP) to Ms Mba, which was that staff were required to work Sunday shifts in accordance with the rota. It also agreed that this PCP would put persons of the same religion as Ms Mba at a particular disadvantage when compared with others, and that Ms Mba was put at such a disadvantage.
The only matter for the tribunal to resolve was whether or not the PCP was justified as a proportionate means of achieving a legitimate aim, which required the tribunal to weigh the discriminatory impact on Ms Mba against the reasonable needs of the respondent.
The tribunal rejected Ms Mba’s argument that requiring her to work on Sundays was in itself an unlawful instruction that constituted a direct breach of art.9 of the European Convention on Human Rights, which provides the right to freedom of thought, conscience and religion. The tribunal observed that an interference with religious observation that constitutes a proportionate means of achieving a legitimate aim is likely to be lawful under both art.9 and in terms of indirect discrimination on the ground of religion or belief. It cited previous case law that established that art.9 “does not require that one should be allowed to manifest one’s religion at any time and place of one’s choosing”, and “does not protect every act motivated or inspired by religious belief”.
The tribunal found that neither insisting that Ms Mba worked on Sundays nor taking disciplinary action against her when she failed to do so was a breach of any express contractual term.
The tribunal rejected Ms Mba’s allegation, regarding management’s concerns as to the business impact if she were not to work on Sundays permanently, that “there was no business need, only a determined attempt by an employer to force an employee to choose between her faith and her employment”. It also rejected Ms Mba’s argument that the respondent, via Mr Deegan, “deliberately put a series of obstacles in the way of [her] exercising her belief that she should not work on Sundays”. On the contrary, management had made substantial attempts to try to accommodate her beliefs. The business considerations of the respondent were genuine, and constituted a legitimate aim, which was to ensure:
- an appropriate gender balance on each shift;
- an appropriate seniority mix on each shift;
- a cost-effective structure in the face of budgetary constraints;
- fair treatment of all staff;
- compliance with legal limits on working time;
- continuity of care for children; and
- limited use of agency and bank workers.
The tribunal accepted that the PCP impacted on Ms Mba’s “genuinely and deeply held religious belief and observance” but held that it was, on balance, a proportionate means of achieving the legitimate aim. In terms of the degree of disadvantage to Ms Mba, the tribunal noted that the respondent had made efforts to accommodate her wishes for two years, and was prepared to arrange her shifts in a manner that enabled her to attend church each Sunday. The tribunal also noted that Ms Mba’s belief about Sunday work was not a “core component” of the Christian faith. This finding was supported by Bishop Nazir Ali’s witness statement in support of Ms Mba, which stated that “some” Christians will not work on the Sabbath.
The tribunal also found that, even though the home had not filled all its permanent positions during Ms Mba’s employment, there were no viable or practical alternatives to requiring her to work shifts in the same manner as the other staff. The tribunal rejected all of the alternatives that Ms Mba put forward, which were as follows:
- Scheduling a colleague, Ms Ahmed, to undertake Ms Mba’s Sunday shifts. Ms Ahmed was the only member of staff with whom Ms Mba could swap shifts without raising the problem of either gender or seniority imbalance. She was already scheduled to work two Sundays out of three so, even if she had been willing to, she was not able also to cover two out of every three Sunday shifts for Ms Mba.
- Recruiting an additional female permanent employee to cover Ms Mba’s Sunday shifts. The home had attempted to do this, but had been unsuccessful.
- Use of bank and/or agency workers to cover Ms Mba’s Sunday shifts. This had undesirable cost consequences, and agency staff, who were cheaper than bank staff on Sundays, were generally less well-trained and experienced than permanent staff.
- A colleague, Ms Alviz, working Ms Mba’s Sunday shifts. This would have meant Ms Alviz working more than 48 hours per week, and there were concerns about her sickness record. Further, Ms Alviz was on a higher rate of pay than Ms Mba and, as the tribunal noted, “workers do not usually volunteer to work for lower rates of pay than they are entitled to”.
- Using the respondent’s “outreach” team. This was a different service, which worked with children in the community on weekdays. The tribunal agreed with the respondent’s conclusion that it was not viable to swap Ms Mba’s Sunday shifts with an outreach worker’s Thursday and Friday shifts.
The tribunal rejected Ms Mba’s discrimination claim. On this basis, it found that there had been no breach of the implied term of trust and confidence, and also rejected the claim for constructive dismissal.
- Cherfi v G4S Security Services Ltd EAT/0379/10 In this decision, the Employment Appeal Tribunal held that an employer’s refusal for business reasons to allow a Muslim security guard to leave the workplace to attend a mosque on Fridays was proportionate and justified. Accordingly, it did not amount to unlawful indirect religious discrimination.
- Copsey v WWB Devon Clays Ltd  IRLR 811 CA In this case, the Court of Appeal held that art.9 of the European Convention on Human Rights did not require the Employment Rights Act 1996 to be interpreted in such a way as to render unfair an employee's dismissal for refusing a change to his working hours that meant working on Sundays.
- Get more information on religion or belief discrimination in the XpertHR FAQs section, which answers the following questions: