Celestina Mba

In a flurry of activity at the end of last year, senior courts in Britain handed down several judgments that related to religious freedom in the spheres of family, employment and discrimination law. One matter before the courts concerned the Sabbath. Is resting on a Sunday a core component of the Christian faith, and if so, what measures can be used to consider the importance of a religion or belief to a person who professes it?

Celestina Mba is a Christian who attends church in South London. In 2007 she was employed as a care assistant in Brightwell, a children’s home run by a London borough. Although her employment contract included the obligation to work at weekends, her employers initially arranged her rosters of work to excuse her from  working on Sundays. Eventually, however, personnel management issues meant she had to work at weekends, which Mrs Mba declined to do. After missing several Sunday shifts she was fired, and brought an employment claim.

On appeal, the court was faced with the law that protects people from discrimination on the grounds of their religion or belief. This area of law is quite technical, particularly in its consideration of indirect discrimination in the workplace. Does an employer have a “provision, criterion or practice” (‘PCP’) which is applied or would apply equally to each person who is not of the same religion or belief as the employee? And if so, when the PCP is applied, does it put anyone “at a particular disadvantage when compared with other persons”? If so, it is indirectly discriminatory. A defence lies if the employer can show the PCP to be “proportionate means of achieving a legitimate aim”. In essence, “proportionality” means balancing the “legitimate aim” of the employer against the “religion or belief” of the employee – a very tricky balancing-act, obviously, for any tribunal.

Mrs Mba’s belief is that Sundays are days of rest, and not work. She knows the Fourth Commandment: “Remember the Sabbath day, to keep it holy. Six days you shall labour, and do all your work; but the seventh day is a Sabbath to the LORD you God; in it you shall not do any work” [Exodus 20:0]. The Court’s first problem was to assess the weight of this belief: was it heavier if it was a belief common to all or most or a sizeable group of Christians? Or was its weight to be assessed by considering how firmly the religious believer believes it? Mrs Mba, after all, was prepared to be sacked from her job for the sake of this belief. The Court of Appeal came to the conclusion that previous decisions had placed too much emphasis on  the quantitative method — how many believe — and not enough on the second: how firmly the belief is held.

As it turned out, Mrs Mba was contractually obliged to work on Sundays, and the council had accommodated her belief for two years. It was prepared to change her shifts so she could still attend church on Sundays (even if she couldn’t have the whole day off). And Brightwell needed experienced staff able to work all week. Their indirect discrimination was therefore for a legitimate aim and was in fact proportionate in this case.

It is heartening, however, that the law is moving – ponderously, one foot-step at a time – towards protecting the intrinsic beliefs of Christians without resorting to a simple game of numbers. As one judge put it, “[I]t is not necessary to establish that all or most Christians, or all or most non-conformist Christians, are or would be put at a particular disadvantage. It is permissible to define a claimant’s religion or belief more narrowly that that”.The judgments in Mba’s case show that deciding on what religion or belief is being protected and how much weight it should have vis-à-vis the employer’s demands, is still very unsettled. But when a person claims they are being discriminated against, the question will be more nuanced than a simple canvass of Christians.

The judges might have profitably referred to the Catechism of the Catholic Church, which carefully balances the requirement of rest with the need to serve others. The general rule is that, as “human life has a rhythm of work and rest”, Sundays “help everyone enjoy adequate rest and leisure to cultivate their familial, cultural, social and religious lives” [2184] and the faithful are “to refrain from engaging in work or activities that hinder the worship owed to God” [2185]. But the Catechism also notes that “family needs or important social service can legitimately excuse from the obligation of Sunday rest” — working at a home for looked-after children presumably falls squarely within that category — and concludes [2188]: “In respecting religious liberty and the common good of all, Christians should seek recognition of Sundays and the Church’s holy days as legal holidays…If a country’s legislation or other reasons require work on Sunday, the day should nevertheless be lived as the day of our deliverance which lets us share in this ‘festal gathering’, this ‘assembly of the firstborn who are enrolled in heaven’”.

[Peter Smith]