CELESTINA MBA, a care worker who refused to work on Sundays (News, 2
March 2012), lost her appeal in the Court of Appeal last week
in her claim that her employers' insistence that she should work on
certain Sundays amounted to religious discrimination.
Mrs Mba is a Christian who attends a church in south London. She
sincerely believes in the fourth commandment: that Sunday is a day
for worship, and not for work.
In July 2007, she became employed as a care assistant in
Brightwell, a children's home run by the London Borough of Merton.
The children there have serious disabilities, and complex care
needs arising from challenging behaviour; medical needs; feeding
difficulties; and similar problems.
Her job description contained a clause that is not uncommon in
an environment that necessitates 24-hour care, and requires her to
"undertake duties outside normal working hours as required by the
shift rota, including weekends, Bank Holidays, and sleeping
Mrs Mba took the view that, as a result of what had passed
between her and Merton Council's management at the time of her
appointment, she was not contractually obliged to work on
It was now accepted, however, that, while management would
endeavour to arrange the rosters so as to permit Mrs Mba not to
work on Sundays, and that was achieved in the early part of her
employment, her legal obligation was to work on Sundays as and when
required. When the council began to roster her for Sunday working,
a dispute arose.
Mrs Mba raised a grievance, which was rejected, and she was
scheduled to work certain weekends, including Sundays. She declined
to do so, and disciplinary proceedings ensued, leading to a final
warning. Her appeal against that was rejected (News, 4 January),
and, at the end of May 2010, she resigned "with regret".
She then commenced proceedings in the Employment Tribunal,
alleging constructive dismissal and indirect religious
discrimination. The central issue now was religious
The Employment Equality (Religion or Belief) Regulations 2003
provide by regulation 3(1) that "a person (A) discriminates against
another person (B) if . . . 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 which puts or would put
persons of the same religion or belief as B at a particular
disadvantage when compared with other persons . . . which puts B at
that disadvantage, and which A cannot show to be a proportionate
means of achieving a legitimate aim".
The Employment Tribunal ruled that the relevant "provision,
criterion, or practice" was the requirement that staff work on
Sunday shifts as rostered, and that the "legitimate aim" was the
effective running of Brightwell in terms of service costs and
On the question whether rostering Mrs Mba for Sunday working was
"a proportionate means of achieving [that] legitimate aim", the
tribunal took into consideration three factors.
First, that the council did make efforts to accommodate Mrs
Mba's requirements for two years. Second, that the council was
prepared to arrange the shifts in a way that enabled her to attend
Sunday worship each Sunday; and, third, that her belief that Sunday
should be a day of rest on which no paid employment was undertaken,
although a deeply held belief by Mrs Mba, was "not a core component
of the Christian faith".
On those grounds, the tribunal refused Mrs Mba's claim, and
ruled that the council had acted in a proportionate manner. The
Employment Appeal Tribunal upheld the Employment Tribunal's
In the Court of Appeal, it was argued for Mrs Mba that the
Employment Tribunal fell into legal error in relation to those
three factors. Her complaint was that the first two were irrelevant
to the question of proportionality, and that the third misstated
the law. The Court of Appeal agreed that there was an error of law
in the tribunal's reasoning.
Lord Justice Kay, Vice-President of the Civil Division of the
Court of Appeal, who heard the case with Lord Justice Elias and
Lord Justice Vos, said that it was not necessary to establish that
all or most Christians, or all or most Non-conformist Christians,
were, or would be put at a particular disadvantage. It was
permissible to define a claimant's religion or belief more narrowly
than that, and that was where the tribunal went wrong.
In describing Mrs Mba's Sabbatarian belief as "not a core
component of the Christian faith", the tribunal "opened the door to
a quantitative test on far too wide a basis". It was clear that for
some Christians working on Sundays was unacceptable, and Mrs Mba's
belief genuinely embraced that. On that basis, the tribunal should
have found that Mrs Mba was disadvantaged, and that the real issue
was whether that was "a proportionate means of achieving a
Despite the legal error, however, all three judges found that,
in the circumstances, the council had established that there was no
viable and practicable alternative way of running Brightwell but to
ask Mrs Mba to work on Sundays, in accordance with her contract.
The requirements made of her to work on certain Sundays were a
proportionate means of achieving an indisputably legitimate aim.
The legal error made by the Employ- ment Tribunal made no differ-
Nevertheless, the Christian Legal Centre, which supported Mrs
Mba's claim, hailed the Court of Appeal's ruling that an individual
believer's faith should be recognised, and, in principle,
The director of the centre, Andrea Minichiello Williams, said
that at last the courts were "beginning to demonstrate greater
understanding of what it means to be a Christian". Many Christians,
she said, would now be able to argue that their employer must
respect their rights of sabbath worship.