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The Court of Appeal has ruled that a children’s centre did not discriminate against a former Christian employee by requesting that she work on Sundays.
The decision was a victory for the London Borough of Merton, which turned to its newly-formed legal arm, the South London Legal Partnership (4 October 2013) to represent it. Lawyer Nigel Cameron instructed Five Paper Buildings’ Jake Davies.
The case was brought by employee Celestina Mba against the Brightwell children’s centre, where she worked as a care assistant. The role required her to ”undertake duties outside normal working hours as required by the shift rota including weekends, Bank holidays and sleeping duties”.
Mba agreed to the contract and acknowledged that she was legally obliged to work on Sundays when required. But she resigned in 2010, claiming she was pressured to work on Sundays. She claimed this constituted constructive unfair dismissal and indirect religious discrimination.
In 2010 an employment tribunal ruled that Mba had not been indirectly discriminated against for being asked to work on Sundays, despite her religious beliefs. Last year the decision was upheld by the Employment Appeal Tribunal (EAT).
Lord Justices Maurice Kay, Elias and Vos sided with the ET and EAT, ruling that none of the alternatives to Mba not working on Sunday were really “viable and practicable”.
But they criticised the tribunal and EAT for legal errors and overturned their approach to defining religious belief.
The employment tribunal ruled that because not all Christians observe Sundays, it could not be considered a “core component” of the Christian faith and could not be safeguarded.
Elias LJ said: “The more difficult question is whether the Tribunal was entitled to take into account the fact that the refusal to work on a Sunday, although a deeply held belief of the appellant, ’is not a core component of the Christian faith’.”
But Maurice Kay LJ said: “I have come to the conclusion that, in all the circs of this case and notwithstanding the legal errors to which I have referred, the decision of the ET that the imposition of the PCP [provision, criterion or practice] was proportionate was ’plainly and unarguably right’.”
Mba was represented by Andrews Law partner Rob Andrews to lead the case, instructing ‘religious liberty’ barrister Paul Diamond.