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"Remember the Sabbath day, to keep it holy." Exodus 20:8

05/12/2013

Earlier today the Court of Appeal refused to uphold an appeal by Celestina Mba against the decision of the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) that she had not been discriminated against when she resigned in the face of disciplinary action brought by Merton Council against her for refusing to work Sunday shifts. 

Mrs Mba, a Christian, was employed by Merton Council in July 2007 to work as a care assistant at a children's home. The contract required Mrs Mba to work shift rotas, including weekends. However, the rosters were arranged so that she did not have to work on Sundays. In July 2009 the rosters were changed so that Mrs Mba was required to work on Sundays. However, the Council was prepared to arrange Mrs Mba's shifts so that she could attend church to worship every Sunday. Mrs Mba raised a grievance and was given disciplinary warnings for refusing to work on Sundays. After receiving a final warning Mrs Mba resigned and brought Employment Tribunal proceedings claiming constructive unfair dismissal and indirect religious discrimination.

The Court of Appeal today refused Mrs Mba's appeal finding that while the requirement to work on Sundays put some Christians and Mrs Mba at a disadvantage it was a proportionate means of achieving a legitimate aim. That legitimate aim being the most practical and effective way of running the children's home in terms of the costs, quality and efficiency of service delivery.

However, the Court of Appeal did find that the ET and EAT had been wrong in finding that Mrs Mba's belief that Sunday should be a day of rest (the Fourth Commandment) is not a core component of the Christian faith.

The Court of Appeal also observed that the decision of the European Court of Human Rights in Eweida about the right to wear a cross at work which was won on the grounds that there was "no evidence of very real encroachment on the rights of others" is fact sensitive. The difficulties employers are facing in seeking to balance religious beliefs within a secular society have come into public focus more and more this year with today's Judgment, the ECHR decision in Eweida and others and last week's Supreme Court decision to uphold the finding of the lower courts that Mr and Mrs Bull had discriminated against a gay couple in refusing to allow them to share a room with a double bed. If you do have any concerns about how to address an issue raised by a worker relating to their religious belief please contact me or a member of the team.

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