Towards the reasonable accommodation of religious freedom
Posted on 03 August 2015 by Carter-Ruck
Peter Smith has been published in the most recent volume of the prestigious Denning Law Journal. His article considers the case of Mba v London Borough of Merton in the Court of Appeal, and analyses aspects of employment law and human rights which surround the case.
The Court of Appeal’s decision in Mrs Mba’s case is notable because: (a) it rejects the qualitative evaluation of her Sabbatarian belief as a “core component” of Christianity in assessing for the purposes of domestic anti-discrimination legislation the proportionality of her employer’s requirement for her to work Sundays; (b) it continues to keep minimal the size of the group required to show group disadvantage; and (c) per Elias LJ and Vos LJ, it finds the assessment of group disadvantage to be incompatible with Article 9 when the ECHR is engaged. The case represents the continued move from a group to an individual focus, and is welcome: it better protects personal religious freedoms. The logical conclusion is for domestic law to oblige employers to reasonably accommodate religious rights via a sui generis legal mechanism.
Celestina Mba worked as a care worker in a children’s home, the Brightwell. She was rostered by her employer, the London Borough of Merton, to work on Sundays, in line with her contractual obligations of employment. She did not wish to work on Sundays for reasons connected to her religious beliefs as a Baptist Christian. After a final written warning (against which she unsuccessfully appealed) Mrs Mba resigned from her employment. She subsequently brought a claim alleging constructive unfair dismissal and discrimination against the council.
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