Collective conscience

As we approach one of the biggest festivals in the Christian calendar, the Court of Appeal has looked at whether a Council was justified in asking a Christian care worker to work weekends, despite her belief that Sunday should be a day of rest.  In coming to its decision, the Court of Appeal has helped to 'fill in the gaps' in our understanding of the 'group disadvantage' aspect of indirect religious discrimination, following the decision of the European Court of Justice in Eweida v UK, earlier this year.  Sarah Maddock looks at where these recent cases leave us.

The background

Under sections 10 and 19 of the Equality Act 2010 (EqA 2010), indirect religious or belief discrimination occurs where

• A applies to B a provision, criterion or practice (PCP).
• B has a particular religion or belief (or lack of religion or belief).
• A applies (or would apply) that PCP to persons not of the same religion or belief as B.
• The PCP puts or would put persons of B's religion or belief (or lack of religion or belief) at a particular disadvantage when compared to other persons.
• The PCP puts or would put B at that disadvantage.

So, for an indirect religious discrimination claim to succeed, the claimant first has to show that not only would a PCP put them at a disadvantage; but also that those sharing the same religion or belief would also be at a disadvantage. This test is sometimes known as 'group disadvantage'.

Only once group disadvantage has been established does the court or tribunal go on to consider whether the PCP is justified – in other words, whether the PCP is a 'proportionate means of achieving a legitimate aim'.

Outside of our domestic law, Article 9 of the European Convention on Human Rights (ECHR) provides for freedom of thought, conscience and religion.

In the two cases reported below, the courts grappled with the question of how to square the 'group disadvantage' aspect of indirect discrimination with the highly individual and personal nature of faith.

The facts

In Eweida and ors v UK (please click here for our summary), the European Court of Human Rights (ECtHR) considered whether British Airways' uniform policy was discriminatory because it prevented a Christian employee from wearing a visible cross. Ms Eweida's original domestic claim for indirect discrimination failed because she was not able to show the required 'group disadvantage' under the Equality Act 2010 (evidence was submitted that insufficient numbers of Christians felt that wearing a cross was part of their faith). Ms Eweida then brought a claim in the ECtHR under Article 9 of the ECHR that her inability to bring a successful claim under UK law meant that the UK government had failed to protect her right to manifest her religion.

In Mba v the London Borough of Merton, Ms Mba brought a claim based on similar principles, but arising from very different facts.  Celestina Mba, a Christian, was employed by the London Borough of Merton as a residential care officer at a children's home. The home, which was open seven days a week, operated a rota system whereby staff were regularly required on to work on the weekend.

Ms Mba's contract stated that she could be required to work on Sundays; but she did not wish to do so because of her religious belief that Sunday should be a day of rest. For two years, Merton accommodated Ms Mba's wishes by allowing her to work every Saturday and take every Sunday off.  Importantly, it did not promise that this would be a permanent arrangement. Eventually, Merton insisted that Ms Mba work on Sundays in accordance with her contract. She refused to do so and resigned. Ms Mba brought an indirect religious discrimination claim against Merton, arguing that rather than requiring her to work on Sundays it should have taken steps such as

• using bank or agency workers
• recruiting an additional female permanent employee or
• scheduling other female employees to work her Sunday shifts.

An employment tribunal rejected Ms Mba's claim, finding that Merton's requirement that all care workers work on Sundays was objectively justified. The tribunal said it was legitimate for Merton to have the aims of ensuring

• an appropriate gender balance on each shift
• an appropriate seniority mix on each shift
• a cost-effective service in the face of budgetary constraints
• fair treatment of other staff, who were having to cover Sunday shifts disproportionately and
• continuity of care for the children at the home.

The tribunal accepted that the requirement impacted on Ms Mba's religious beliefs, but noted that

• Merton made efforts to accommodate Ms Mba's wishes for two years; and
• Merton was still prepared to arrange Sunday shifts in a way that enabled Ms Mba to attend church.

Ms Mba's appealed to the Employment Appeal Tribunal, which upheld the employment tribunal's decision that Merton's actions were justified.  Ms Mba then appealed to the Court of Appeal (CA).

Group disadvantage

In Ms Eweida's claim, the ECtHR agreed with Ms Eweida that BA's uniform policy was a breach of her Article 9 right to manifest her religion, but it has been argued that the ECtHR omitted to deal with the question of lack of 'group disadvantage'; its focus was very much on the right to a personal expression of faith.  Religious freedom, it said, "is primarily a matter of individual thought and conscience", and its reasoning largely centred on whether BA's uniform policy was justified.  Ultimately, it said that Ms Eweida's right to manifest her religion 'trumped' BA's desire to project a particular corporate image. This left us with something of a 'hole' in our understanding of religious discrimination, because it was not clear how the 'group disadvantage' test under the Equality Act was to be interpreted.

This was looked at more closely in the CA's decision in Ms Mba's claim.  The CA also upheld the original employment tribunal's decision that Ms Mba's claim for indirect discrimination failed, albeit that it decided that the tribunal's reasoning in reaching that decision was flawed.

The CA said that the employment tribunal applied too wide a test to the question of group disadvantage.  The lead CA Judge said that it is not necessary to establish that all or most Christians, or all or most non-conformist Christians, are or would be put at a particular disadvantage; the only requirement is to show that some Christians would be put at that disadvantage – and it was clearly established in evidence that for some Christians, working on a Sunday is unacceptable. This differed slightly from the analyses of the two other CA judges in this case: they said that an employee's right to freedom of religion under Article 9 of the ECHR does not require any comparison with a group; it is enough that there has been interference with a personal right. So, there was indirect discrimination against Ms Mba, notwithstanding that not all Christians would object to working on a Sunday.

However, the CA then went on to say that, not only was the Council's indirect discrimination justified, but it was "plainly and unarguably right", because the Council had no viable or practical alternative way of running the care home effectively. The CA was also highly persuaded by the fact that Sunday working was part of Ms Mba's contract of employment; and the temporary arrangement regarding Sunday working was not.

What does this mean for me?

The way in which indirect religious discrimination case law is developing suggests that the courts and tribunals are adopting a narrow approach to the group element of 'religion or belief'.  This means that a tribunal is unlikely to focus on whether a PCP has a 'group disadvantage' element and is instead likely to consider

• whether that PCP disadvantaged the individual in question and
• if so, whether that disadvantage was justified.

In short, justification of religious discrimination is, in future, likely to come to the fore.  This is why the media reporting of the Mba case as 'Sunday working is not discriminatory' should be treated with caution; it would be more accurate to say that Sunday working may be discriminatory but, in certain circumstances, may be justified.

The practical effect of this is that you need to ensure that you are confident of your justification arguments if you feel that you may be discriminating on the basis of religion.  The CA in Mba was persuaded by the factors that Merton took into account (summarised above) as supporting their actions; in particular, it was important that Ms Mba had freely entered into a contractual arrangement to work on a Sunday.  Although Merton's justification arguments are specific to the facts of this particular case it is likely that a future tribunal will be looking for similar evidence of justification – e.g. solid reasons for the PCP, the impact of which has been weighed in the balance against the needs of your organisation, after reasonable alternatives have been considered.

We understand that Ms Mba intends to appeal the Court of Appeal's decision, so this may not be the last we have heard on this knotty area of law…