The case of Mba v The Mayor and Burgesses of the London Borough of Merton gives employers some useful guidance as to how they should deal with an employee whose religious beliefs conflict with the requirements of the workplace.
Celestina Mba is a practising Christian who believes that Sunday is a holy day on which engaging in rest and religious observance is required. In 2007, she began work as a residential care officer at a children’s home run by LB Merton.
The home was open 24 hours a day, seven days a week and operated a rota system to meet operational requirements, as well as those set out in the national minimum standards for care homes. The national standards require that staff in day-to-day contact with children in the home should include staff of both genders where possible. Continuity of care for children is also an important aim.
The home tried to work on a rota system which was fair to all staff. No one had to do an excessive amount of weekend work, as this was unpopular.
At the recruitment stage, the manager, Mr Deegan, explained to Ms Mba that all staff had to work a shift rota that included weekends. Ms Mba replied that she would have “difficulties” working on Sundays due to her religious activities, but did not say that her beliefs meant that she could never work on Sundays. Mr Deegan thought that it would be possible to accommodate her commitments. Later there was a dispute about whether Mr Deegan did or did not say that the accommodation would be temporary, though that was what he meant. He did not say anything about being able to support a permanent arrangement. Ms Mba genuinely believed at the time that her religious beliefs would be permanently accommodated. For a period of time the Home accommodated her and she was not rostered to work on Sundays.
Then in early 2008, Ms Mba was rostered for Sundays, but was allowed to take them as annual leave. She objected to this. The Home tried to recruit additional staff to take on more of the Sunday work, but was unsuccessful. By September 2008, Mr Deegan offered Ms Mba the choice of working either morning or night shifts when she was rostered on a Sunday, so that she could carry out her religious commitments. Ms Mba rejected the proposal.
The Home continued to accommodate her, but she was advised that because the cost of providing agency cover was unsustainable, she was expected to work in the same manner as the rest of the team from January 2009. Ms Mba remained unhappy with the requirement to work Sundays.
The Home treated her concerns as an informal grievance and after an investigation found she would have to work some Sundays. She failed to attend for work on the Sundays she had been rostered and was told she would face disciplinary action if she did not comply. She still did not attend for work and the Home held a disciplinary hearing, concluding that the appropriate sanction was a six-month written warning.
After an unsuccessful appeal, Ms Mba resigned, stating that there was a “direct conflict between [her] faith…and Sunday work at Brightwell”. She complained of indirect discrimination on the ground of religion or belief, and constructive dismissal.
The Home agreed that it had applied a provision, criterion or practice (PCP) to Ms Mba, which was that staffs were required to work Sunday shifts in accordance with the rota. It also agreed that this PCP would put persons of the same religion as Ms Mba at a particular disadvantage when compared with others, and that Ms Mba was put at such a disadvantage.
However, it argued that the requirement was reasonable and proportionate. Rejecting Ms Mba’s argument that requiring her to work on Sundays was in itself an unlawful instruction that constituted a direct breach of art.9 of the European Convention on Human Rights, which provides the right to freedom of thought, conscience and religion, the tribunal found that an interference with religious observation that constitutes a proportionate means of achieving a legitimate aim is likely to be lawful under both art.9 and in terms of indirect discrimination on the ground of religion or belief. The Home had tried very hard to accommodate her beliefs. However, in addition to Ms Mba’s requirements it had a number of other items to consider, including ensuring:
- an appropriate gender balance on each shift; • an appropriate seniority mix on each shift; • a cost-effective structure in the face of budgetary constraints; fair treatment of all staff;
- compliance with legal limits on working time;
- continuity of care for children;
- limited use of agency and bank workers.
The tribunal also concluded that Ms Mba’s belief about Sunday work was not a “core component” of the Christian faith. This was supported by Bishop Nazir Ali’s witness statement in support of Ms Mba, which stated that “some” Christians will not work on the Sabbath.
The tribunal rejected Ms Mba’s discrimination claim. There were no viable or practical alternatives to requiring her to work shifts in the same manner as the other staff. The Home’s requirements outweighed Ms Mba’s Christian desire not to work on Sundays because she believes that it is a day of worship and rest. Following on from this the tribunal found that the Home had not breached the implied term of trust and confidence, and thus there was no constructive unfair dismissal.
So the conclusion is that while behaving reasonably, employers do not have to do absolutely everything possible to accommodate an employee’s wishes on religious grounds. If they cannot accommodate the employee in full, they should consider and offer alternatives.
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