Justifying Sunday working
10 January 2013
In Mba v London Borough of Merton the EAT considered whether Ms Mba, a Christian, could refuse to work Sundays. She argued that Merton’s insistence that she do was indirect discrimination.
The EAT concluded that it wasn’t. Although Merton’s policy was a PCP which put people with her religious views at a disadvantage, and which put her at that disadvantage, it was a proportionate means of achieving a legitimate aim. In other words, the policy was justified.
The most interesting part of the decision is President Langstaff’s discussion of whether tribunals should investigate whether keeping the Sabbath was a wide-spread part of Christian belief as part of their consideration.
Langstaff confirmed the principle that judges cannot approach claims by assessing a claimant’s actions against the teachings of a religion. It is an individual’s religious beliefs that are protected. It does not matter whether those views are typical. Typical views are protected, but so are those that are unusual, idiosyncratic or even fringe.
But, the EAT went on, the prevalence of a religious view was relevant to assessing proportionality. A policy that adversely affected a small minority of a particular group will have a lessor discriminatory impact than one that affected a large majority of the same group. And the greater impact a policy had, the more difficult it would be to justify.
In Ms Mba’s case, she was adversely affected because of her belief that she should not work on the Sabbath. This belief was shared by only a small number of Christians and therefore the impact of the policy was less than it would have been if most Christians believed it. This, in combination with a number of other factors specific to the facts of her case, led the tribunal to concluded that the Sunday working policy was justified.
This approach is certainly attractive. It makes sense that, where a policy will adversely affect a large number of people, it is harder to justify than one that affects a small group of people.
Nonetheless, I think there are some problems. Or at least complications that will have to be tested in future cases.
Although the judgment approaches the issue of impact by considering the proportion of those holding a particular belief, why does proportion, rather than absolute numbers, determine impact? And the proportion of what?
Say a workplace requires employees to work both Fridays and Sundays. Some Jews and some Christians will be adversely affected. I suspect Jews are more likely to keep the Sabbath than Christians, so the proportion of them adversely affected will be higher. But about 59% of people in England and Wales are Christians, while only 0.5% are Jewish.1 So the absolute number of Christians adversely affected may well be higher.
How then do we assess the impact of the policy on the two different groups? Applying the wording in Mba strictly, we would seem to say that the discriminatory impact on Jews is greater. But that seems odd to the point of wrongness when Christians are treated the same way, disadvantaged for the same reason and there are significantly more of them being disadvantaged. It would certainly seem odd if, were other factors finely balanced, the indirect discrimination could be justified in the case of Christians, but not in the case of Jews.
We might, therefore, start to look at the number of people a policy affects. But this creates real difficulties when dealing with religious minorities. If it is absolute numbers that matter, the majority religion (Christianity in the UK) has a significant built in advantage. It will always be much harder to justify indirect discrimination against Christians and, conversely, much harder to attack a policy that affects Muslims, Hindus, Sikhs, Jews and so on.
If a key reason for having discrimination law in the first place is to protect disadvantaged groups within society, an approach that advantages the relatively advantaged majority seems undesirable. It’s also very hard to see how the same principle could apply to other areas of equality law. I doubt many judges would be sympathetic to an argument that a policy adversely affected black people, but this wasn’t too bad because they were a small minority of the population.
Considering proportions of those holding particular beliefs also raises the question of how we define belief. The EAT talks about the proportion of those who `ascribe to a particular belief’. But you can manipulate the proportions by changing how you define the relevant belief. If the belief is ‘God has told us not to work on the Sabbath and to do so is a serious sin’ then the percentage of people with that belief who will not work on the Sabbath (and therefore be adversely affected) will be very high. The Tribunal and EAT both seem to approach belief as meaning adherents to the Christian faith. Unsurprisingly, the percentage who will not work on the Sabbath is much lower.
Much therefore turns on whether you consider the specific belief being engaged by the relevant policy (working on the Sabbath), a claimant’s religious belief as a whole (Christian) or something in between, such as sect, tradition or denomination. As well as being difficult, this also seems undesirable. When considering justification should it matter so much whether a claimant is defined as a Christian, a Catholic, a Catholic who does not accept Vatican II or someone who believes the vernacular mass is wrong?
I suspect the ultimate answer to all of this is that there are a number of different ways a policy may have discriminatory impact, not all of which will apply in the same way in every case. So, one way of showing impact is to show that most people of a certain religion will be adversely affected. But another is to show that a large number of people will be adversely affected. For that matter, if a small percentage of a certain religion, which amounts to a small absolute number, are adversely affected – but 6 of them work in a 10 person company – that is likely to be a significant impact too. If we consider the proportion of people with a particular group being affected as one potential analysis tool, rather than a fixed rule, much of the concern over defining belief also falls away.
It’s also important to remember that this is only one of the many factors that form part of any decision about justification.
Nonetheless, I suspect we shall see more cases arguing about these issues for some time yet – probably as early as next week when the European Court of Human Rights hands down Ladele v United Kingdom etc.
Unfortunately, but also predictably, this case was not well reported. Don’t miss Laurie Anstis’ pithy comment.
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