Ms Mba worked as a care worker in a children’s home for the London Borough of Merton. She is a Christian and was not rostered to work on Sundays. The Council decided to require her to work Sundays, as it was entitled to do under her contract. She resigned. She claimed that this was indirect discrimination on grounds of religion, as the requirement to work Sundays put Christians like her at a disadvantage.
The Council’s defence was that the requirement to work Sundays was ‘a proportionate means of achieving a legitimate aim’. The employment tribunal agreed, but got the law wrong, as it should have considered the discriminatory impact on the disadvantaged group (Christians) as a whole, not on Ms Mba. Indirect discrimination is group discrimination, whereas direct discrimination victimises an individual.
The Employment Appeal Tribunal, in Mba v London Borough of Merton EAT/0332/12, made the following points:
- The question of whether a discriminatory practice is justified is for the Tribunal to decide. Hence an employer can seek to justify a practice when it is called into question and is not confined to considerations when the practice was adopted.
- The Tribunal is not to adjudicate on tenets of faith, whether rest on Sunday is or is not a core component of Christian religion. However, the weight to be given to the degree of interference with religious belief ‘will inevitably differ depending upon the number of believers who will be affected’. This is a good point for employers dealing with ‘believers’ in public sector broadcasting or who are anti-foxhunting.
- The Council was prepared to arrange shifts in a way that enabled Ms Mba to attend church each Sunday.
The Employment Appeal Tribunal dismissed Ms Mba’s claim.
So Merton care workers cannot comply with the fourth Commandment at Exodus 20:8:
‘Remember the Sabbath day, to keep it holy. Six days shalt thou labour, and do all thy work.’
Remember, too, that the decision depended upon specific circumstances. The scope to justify a discriminatory practice in every case requires the Tribunal ‘to weigh the need against the seriousness of the detriment to the disadvantaged group’, as Mummery LJ explained in R (Elias) v Secretary of State for Defence  1 WLR 3213 CA paragraph 151.
Would you come to a different conclusion?