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Employment Law and Religious Rights - Striking a Balance

About The Author

Georgia Mitchell (Writer)

Georgia is in her second year of Law at Newcastle University. She is currently pursuing a career as a commercial solicitor, and hopes to work abroad within the EU at some point in her future career. Outside of her studies, Georgia is an avid tennis fan.

The question of whether employers should respect religious views even when they affect working patterns has been increasingly controversial in recent years, with the most high-profile decisions concerning the wearing of religious items. However, a further conflict between religion and employment rights concerns whether employees can refuse to work on the Sabbath and other religious days.

In this article I will examine the case of Mba v Merton London Borough Council [2013] and its implications for employment rights, which considered that very point. In the UK, the definitive legislation on discrimination in the workplace is the Equality Act 2010. Additionally, since the Human Rights Act 1998 (HRA), the European Convention on Human Rights (ECHR) is relevant to UK law, particularly, Article 9 (the right to freedom of religion) and Article 14 (the right not to be discriminated against). 

Nevertheless, there are still people entertaining genuine religious beliefs, who are being denied the right not to work on Sundays, being placed in the unenviable and conceivably unjust position of having to choose between their faith and their career.

Section 4 of the Equality Act 2010 includes religion as one of the nine characteristics afforded legislative protection. Moreover s. 13 and s. 19 of the 2010 Act states that it is unlawful to directly or indirectly discriminate against a person on the grounds of their religious beliefs. However, despite safeguards such as the Equality Act having being implemented already, discrimination within the workplace is still a very evident issue and individuals' claims of unfair treatment seem rarely to be successful with only 4% of race discrimination claims and 14% of other types of discrimination claims succeeding.

Courts have been quick to dismiss cases by stating that claimants have not specifically been discriminated againston account of their religious beliefs. It has been maintained that punitive responses of managers in the workplace have been warranted where employees' actions (such as their inability to comply with contractual hours) simply constitute a failure to perform key duties and responsibilities, for which any other employee would be duly disciplined.

More commonly, court cases surrounding indirect discrimination are more prevalent than those concerned with direct discrimination. Indirect discrimination can occur where an apparently neutral provision is applied in a way that puts workers possessing a particular protected characteristic, such as gender or religious belief, at a particular disadvantage compared to colleagues who do not bear that characteristic. Unlike direct discrimination, an employer can defend a claim of indirect discrimination if it can show that the provision is objectively justified.

Indirect discrimination can be justified if it can be shown to be “a proportionate means of achieving a legitimate aim”. A legitimate aim is deemed to be any lawful decision made within a company, such as promoting access to employment for young people to ensure a mix of generations of staff as to promote the exchange of experiences and ideas. Being proportionate is regarded as being fair and reasonable, including showing that the company has looked at ‘less discriminatory’ alternatives to their potential decision. Traditionally, establishing indirect discrimination has also required the claimant employee to show a group disadvantage under s. 19(2)(b) of the Equality Act, which acts as a practical barrier for some claimants as they must prove discrimination has affected an entire group of people, not merely themselves as an individual.

In the landmark case of Mba v Merton London Borough Council [2013], the claimant care worker, a practising Christian, was forced to resign after refusing to work Sundays because of her faith. Celestina Mba suffered her third successive defeat late last year with the Court of Appeal upholding the view that the local council was acting reasonably under the expectation of Mrs Mba to work on Sundays. Mrs Mba claimed she was subjected to indirect religious discrimination and there had therefore been a breach of s. 19 of the Equality Act.

It could be questioned whether this action was in fact reasonable or whether it actually represents a type of discrimination under the Equality Act 2010. It was generally accepted that she did suffer a type of indirect discrimination belonging as she did to a certain category of employee at some obvious disadvantage. The claims were quashed due to a perceived absence of ‘group disadvantage’ as stated under s 19(2)(b) of the Equality Act. The claimant’s singular needs were deemed unpersuasive. However, after more contemporary developments in this area of law by improving employee’s and rights protection from discrimination, such a case would now involve a closer assessment of the legitimacy of the employer’s aims and the proportionality of his actions (intended or realised). It is to be expected that this more assiduous examination of the employer’s behaviour, as the analysis below demonstrates, should work towards improving employee’s rights and decreasing the level of injurious discrimination currently extant within the workplace.

In Mba v Merton London Borough Council, the Employment Tribunal declared the degree of disadvantage to Mrs Mba was proportionate, as the council had in fact made substantial efforts to accommodate her personal requirements for two years by amending her shift patterns as much as possible to avert her commitment to work on Sundays. However, it was averred by Lord Justice Maurice Kay that a day per week dedicated to rest and worship 'whilst deeply held, is not a core component of the Christian faith'. This judgment was a key component of Mba's ultimate legal defeat.

How much difference should the European Convention of Human Rights and Article 9 make to cases that are similar to Mba? Undeniably they should have a significant effect. Two out of three of the Court of Appeal judges believe Article 9 should have a significant effect on the way that alleged acts of discrimination and their proportionality are assessed. In the case of Mba, the appeal judges were satisfied on balance that the care home where the claimant worked had an overwhelming need to ensure that its staff were available at all times; Lord Justice Maurice Kay stated: 'such a provision is not uncommon in a working environment which necessitates 24/7 coverage'. However, the appeal judges did stress the future need to consider the ECHR (Article 9) whilst presiding on such cases: an outcome that would appear to favour the prospects of future claimants in similar situations.

It is interesting to note that a breach of Article 9 can technically be demonstrated in Mba, as Mrs Mba’s right to freedom of religion was restricted by not being permitted to attend church on Sundays. However, as Professor Lucy Vickers declares in her book, ‘Religious Freedom, Religious Discrimination and the Workplace’: ‘significant hurdles must be overcome before an employee will be able to rely on Article 9.’ Claims have frequently been excluded under Article 9(1), preventing any proper analysis or consideration of accommodation. From the point of view of religiously inclined employees and their legal advocates, any high-level assertion which reinforces Article 9 is undeniably a very positive interpretation of the law. It lends considerable weight to the argument that individuals should be permitted to manifest their religion at work without having to“jump through the hoops of "proportionality" tests”.

Overall, in respect of this area of employment law, there is palpable evidence to indicate that senior managers in the workplace have been allowed to escape their responsibilities to look after the religious beliefs of their employees who have proved vulnerable to the strict application of legal redress. Once an employer's actions have been downgraded to indirect discrimination and a breach of Article 9 can also be invoked, it is only the behaviour of the most unreasonable employers that will ultimately be judged unlawful. Altering work practices to accommodate the religious beliefs (or other idiosyncrasies) of employees will “never be problem-free”.

Exactly how far an employer should be expected to compromise their rigid contractual stance remains a question for legislatures and society in general to debate. The judgment in Mba confirms that employees of all religions may be required to work outside normal working hours, including traditionally religious days, irrespective of their private persuasions. Despite working practices demanding this, employers must ensure that the requirement of the employer to work at certain times is a reasonable one and that providing alternative working arrangements would be a disproportionate accommodation likely to have a notably adverse impact on the overall effectiveness of the organisation. All in all, this would undoubtedly suggest that measured progress is at last being made to address a rather uneasy and long term imbalance between law and religion.

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Tagged: Commercial Law, Discrimination, Employment Law, Human Rights, Religion

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