Ms Celestina Mba was a care worker in a local authority children’s home operated by the London Borough of Merton. Her employers expected her to work occasional Sundays which, as a practising Christian who took the Fourth Commandment very seriously, she did not wish to do. There appears to have been a basic misunderstanding between the parties from the outset: Ms Mba had understood that a promise had been made to her that she need not work Sunday shifts, while her employers thought they had told her that it was not possible to alter the rota but that it was likely to be possible to operate it so that she could work every Saturday and have every Sunday off (para 8).
In due course Ms Mba and her employers came into conflict about weekend duties and she was told that she would have to work two weekends in three in accordance with the normal rota with effect from July 2009 – which meant that for the first time she would have to work on Sundays. She did not work the Sundays for which she was rostered; and after disciplinary proceedings she resigned and took the matter to an Employment Tribunal, arguing that she had been entitled to resign in circumstances in which her employer had wrongfully insisted that she should work on Sundays (para 3). In support of her claim she presented a witness statement by Michael Nazir-Ali, former Bishop of Rochester. The Employment Tribunal dismissed her claim.
In Mba v London Borough of Merton (Religion or Belief Discrimination)  UKEAT 0332 12 1312 (13 December 2012) she argued before the Employment Appeal Tribunal that her employer’s actions discriminated against her and against Christians generally on grounds of religion or belief. She raised three grounds of appeal, summarised as follows:
- that the lower Tribunal was wrong to hold that not working on Sundays was not a “core component” of the Christian faith;
- that the Tribunal had failed to apply the proper test which, it was contended, was one of “anxious scrutiny or intensive review”; and
- that the onus of justifying the proportionality test should have been placed upon the employer rather than upon the employee (para 24).
The President, Langstaff J, began from the proposition that the case turned on a fairly narrow point: that under the Employment Equality (Religion or Belief) Regulations 2003 (which was the applicable law at the time)
“[i]t is no longer open to an employer to require staff to work on Sunday and thereby cause disadvantage to those who are Christian unless the employer can show that the requirement is objectively justified: a standard which has to be satisfied in accordance with the exacting test of proportionality … in R (Elias) v Secretary of State for Defence  1 WLR 3213 CA at paragraph 151” (para 2).
The question, therefore, was very specific: had the lower Tribunal correctly approached the question as to whether or not the employer had objectively justified the requirement for Ms Mba to work on Sundays? Langstaff J made it very clear at the outset that he was considering a very narrow issue and that
“anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other … will both be disappointed. No such broad general issue arises. The questions raised must be determined in the specific circumstances of this particular case alone.” (para 3).
The lower Tribunal had pointed out at para 88 of its determination that:
“(i) The respondent did make efforts to accommodate [Ms Mba] in this respect for two years;
(ii) The respondent was in any event prepared to arrange the shifts in a way that enabled her to attend church to worship each Sunday, and
(iii) Her belief that Sunday should be a day of rest and worship upon which no paid employment was undertaken, whilst deeply held, is not a core component of the Christian faith (in the sense that this phrase is used in Ladele [ie Ladele v London Borough of Islington & Anor  EWCA Civ 1357]…). As much is accepted in terms at paragraph 9 of Bishop Nazir-Ali’s witness statement (served by the claimant), where he states that some Christians will not work on the Sabbath. To approach the matter in this way does not involve a secular court impermissibly adjudicating in evaluative terms upon religious beliefs … as opposed to simply proceeding on the basis of evidence before it as to the components of Christian faith.” [emphasis in original].
The appeal was dismissed: the decision of the lower Tribunal could not be said to be perverse, it had applied the necessary “anxious scrutiny” and the judgment as to whether the existence of alternatives rendered a policy or practice disproportionately discriminatory in its effect was one for the Tribunal and not for the employer.
As to whether or not the belief that one should not work on a Sunday was a “core component” of the Christian faith, Langstaff J felt that the lower Tribunal had not expressed itself very well (para 42). What it appeared to have been doing in that passage was referring back to the Court of Appeal judgment in Ladele. By using the expression “core” the Tribunal was referring to Dr Nazir-Ali’s witness statement that only some Christians felt obliged to abstain from Sunday work and was therefore commenting permissibly on the degree to which Christians would be affected numerically – not attempting to tell Christians what was important in their faith:
“… the Tribunal was here dealing with the weight to be attached on the one hand to the employer’s objectives and on the other the discriminatory impact on Christians generally…” (para 48).
Comment: The conclusion is in line with that of the Court of Appeal in Copsey v WBB Devon Clays Ltd  EWCA Civ 932 – which, as it happens, was not cited. It also has echoes of the “specific situation rule” enunciated in Kalaç v Turkey (1997) 27 EurHRRep 552:
“Article 9… does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account”.
But the “core belief” issue and the numbers game continue to be problematic. To take as an example another issue entirely, opinions among Christians on the morality of abortion and the circumstances in which it may properly be performed are divided. Roman Catholics are fairly overwhelmingly opposed to termination of pregnancy, while Christians of other denominations tend to take a more nuanced approach. So is opposition to abortion a “core belief” or not? A simple head-count across practising Christians in the UK as a whole would suggest that this was an open question – but it is certainly not an open question if you are a Roman Catholic. In which connexion, we await with interest the outcome of the appeal by Glasgow midwives Mary Doogan and Concepta Wood, currently before the Inner House, that being required to supervise staff taking part in abortions breached the terms of the conscientious opt-out in the Abortion Act 1967.
Finally, what the judgment in Mba does not do is to lay down some general rule about whether or not Christians are obliged to work on Sundays. It was a specific judgment about a specific set of facts – and over at UKHRB Adam Wagner duly hauls the Daily Telegraph over the coals for some extremely sloppy, shock-horror reporting which totally ignored that.
The sabbath – and thus the week – was made for mankind, not mankind for the sabbath. As the sun shines on the just and the unjust alike, so the blessings of the institution of the week benefit all. The week is the inevitable and God-intended effect of the institution of the sabbath that has spread to world cultures other than Judaism.
The case that should have been presented, is a case based upon the right to respect for private and family life. NOT religious rights, a supposed right to attend worship weekly. The “private life” right to be able to do ANYTHING non-work-related weekly, in a society where most non-work activities, and most jobs, retain a weekly structure.
The week doesn’t only determine when public worship is scheduled in temples, synagogues, churches and mosques. It is also the week that determines when football is played, or chess; when families eat a proper meal together; often when husband and wife actually have the chance to have an hour-long, uninterrupted conversation; even (in some marriages) when couples have sexual intercourse. The week determines when episodes of soaps are on, and when the council meets. There is hardly a club, or society, or sport, or pastime, or social hobby in existence, that an employee can participate in on his day off, if his day off isn’t the same every week (or nearly every week).
The “rota” the employer in this case imposes on its staff requires staff to work seven (or possibly more) days in a row every three weeks. This makes it impossible for any employee to commit to any weekly leisure activity, on any day of the week. Miss Mba’s employer has therefore not attacked Christians’ Sunday.
By determining that every employee must take a turn at every day when one or more employees must work, even if the employees themselves would prefer to have the same days off every week, the employer has attacked every employee’s right to have any sort of private life at all, that would involve doing the same non-work thing, on the same day, at the same time, every week. Using it’s inhumane “rota”, the employer has also attacked the private and family lives of the other family members of its staff, including their children, and discriminated indirectly against numerous Article 14 demographic groups, including parents.
As usual, the new wave of Christian activists have argued a court case in terms of their own “persecution”, that they could and should and might have won, if they had thought about the bigger picture; that (in the Christian view), God didn’t invent the week for His own benefit, or for his chosen people, or for saints to enjoy, but not for unredeemed sinners. God invented the week for the benefit of the whole of mankind, worshippers and golfers alike. It is the week itself that is under attack, not just the sabbath, from which the week derives.
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Two good posts at A(nother) lawyer writes and A Range of Reasonable Responses.
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