Commenting on the decision in Mba v London Borough of Merton, Hogan Lovells' employment partner Elizabeth Slattery said: "Certainly at employment appeal tribunal (EAT) level this case was reported as meaning that Christians have no right to refuse to work on a Sunday. This is not correct.
"What the Court of Appeal decision makes clear, as the EAT decision did before it, is that cases of this nature are extremely fact sensitive. Tribunals must balance the impact of the practice or policy (here a requirement to work on occasional Sundays) on the employee against the importance of the employer's reasons for implementing it.
"In this case the employer had given careful consideration to the issue in advance and was able to explain why it needed the employee to work on an occasional Sunday.
"These reasons were sufficiently cogent to persuade the tribunal that the policy was justified, despite its impact on the employee. This does not set a precedent for future cases, which will depend on their own facts."
Background to the case
A care worker's contract required her to work on Sundays. After accommodating her wish as a Christian not to do so for two years, her employer required her to work as contractually obliged.
She argued that this discriminated against Christians, and hence her, on grounds of religion or belief. The Tribunal in Mba v London Borough of Merton decided that the employer's aim in seeking to ensure that all full-time staff worked on Sundays in rotation was legitimate, and was objectively justified.
The employer cited a number of reasons for its policy, including the need to provide a mix of men and women, and staff of varying seniority, on shifts; cost; and fairness between employees.
The claimant's appeal against the tribunal's decision was dismissed by the EAT earlier this year and now the Court of Appeal has confirmed the decision.
There was some concern in the Court of Appeal that the tribunal, in balancing the discriminatory impact on the claimant against the reasonable needs of the Council's business, took into account their finding that not working on Sundays is not a 'core' Christian belief. But ultimately, since the evidence showed that the Council had no viable and practicable alternative but to require the claimant to work on Sundays, the claim was always going to fail.
Implications
The main areas where workplace policies can potentially be indirectly discriminatory on grounds of religion or belief are dress codes and rest days/time off for prayer.
Broadly, in both these types of situation, employers need to be careful to ensure they do not place staff at a disadvantage because of their religious beliefs, unless there are compelling reasons to do so.
If good business reasons do exist, employers will need to be able to articulate these clearly in the event of a challenge - as Merton was able to do in this case.
Elizabeth Slattery is a partner at law firm Hogan Lovells
