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I and many others reported on Mba  v Merton last year.  Well, another day in court, we stay roughly where we were.

Ms Mba (M), a devout Christian, resigned from her care worker role at Merton Borough Council (the Council) after the Council began to roster her for Sunday working, having previously accommodated her request not to work on Sundays. She then claimed she had been forced to leave her job and that this amounted to religious
discrimination.

An employment tribunal dismissed her claim and the Employment Appeal Tribunal (EAT) has rejected her appeal. The matter has now gone to the Court of Appeal (civil division) who have rejected the appeal

It is worth reminding ourselves of UK law in this regard: The case before the Tribunal was one of indirect discrimination. For the purposes of the Regulations, a person (A) discriminates against another person (B) if

(b)          A applies to B a provision, criterion or practice which he applies or would apply equally to persons not of the same religion or belief as B, but –

(i)            which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,

(ii)           which puts B at that disadvantage, and

(iii)          which A cannot show to be a proportionate means of achieving a legitimate aim.”

 

In this case the employer argued that their actions were legitimate (24 hour case of disabled people).

Homer v Chief Constable of West Yorkshire [2012] UKSC 15; [2012] ICR 704 para.24, makes it clear that what has to be justified is the particular policy, criterion or practice, but (part of the assessment of) whether the criterion can be justified entails a comparison of the impact of that criterion upon the affected group as against the importance of the aim to the employer”.

Returning to this case, Homer can be modified by reading [34] “In substance the justification is likely to relate to the difficulty or otherwise of accommodating the religious practices of the particular individual claimant.

Of interest to those who follow the arguments about Human Rights, the Court of Appeal found that right to religious freedom under Article 9 was not directly engaged.  This is part might be to do with the fact that many Christians work on the Sabeth and this means the pool of people impacted is insufficient to engage Article 9.

Word of caution:

In the words of Vos LJ in this judgement [40] “there would, I think, be many cases like this one where the question of whether the belief was or was not widely held would in practice be of either marginal or only theoretical relevance in relation to the question of proportionality. It does not, however, seem to me to make the question automatically irrelevant simply because it may work one way in some cases and another way in others.”

 

CitationMba v Merton London Borough Council  [2013] EWCA Civ 1562

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