Mba, Article 9 and the test of Indirect Discrimination

Ms Eweida, you may recall, is the British Airways employee who wanted to wear a cross on a necklace over her uniform so that others could see it. She considered that that was a religious belief. Over-simplifying, doing what she wanted to do meant a breach of her employer’s dress code. Ms Eweida complained that, amongst other things, she was the victim of an act of indirect discrimination.

The test of indirect discrimination is now to be found at Equality Act 2010s. 19. The constituent elements of the test are:

  1. A provision, criterion or practice (“PCP”) must be applied to the claimant;
  2. The respondent must apply it (or the Tribunal must be satisfied that they would apply it) to people who do not share the claimant’s protected characteristic (in this case, holding the belief);
  3. The PCP “puts, or would put, persons with whom [the claimant] shares the characteristic at a particular disadvantage”;
  4. The PCP puts or would put the claimant at that disadvantage; and
  5. The respondent cannot show it to be a proportionate means of achieving a legitimate aim”.

In the domestic proceedings Ms Ewieda failed at the third hurdle. She could not establish that there were others who shared her particular belief. This is often referred to as the requirement for a “group disadvantage”. Solitary disadvantage, the Court of Appeal found, was insufficient. Denied a domestic remedy, Ms Eweida went to the European Court of Human Rights. Again, rather over-simplifying, the ECtHR decided that the wearing of a crucifix in the manner proposed by Ms Eweida amounted to a manifestation of religion falling within Art 9(2) of the Convention:

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The Court decided that the interference with the manifestation was not, in the particular circumstances, proportionate. The UK should have protected Ms Eweida’s right to manifest her religion and had failed to do so.

Whilst the reasoning was clear it left unaddressed a very significant question. The claim had not failed because the Court of Appeal had decided that the PCP could not be justified; it failed because it could not be shown to have had the necessary indirectly discriminatory effect. The question of justification did not arise. So was the effect of the ECtHR’s decision that element 3 of the statutory test was to be regarded as incompatible with Article 9.

The Court of Appeal has now addressed this question in its decision in Mba v Mayor and Burgesses of the London Borough of Merton. Mrs Mba wanted to obey the Fourth Commandment and refrain from working on Sundays. The Council needed to provide care 24 hours a day and seven days a week to those living in the children’s home at which Mrs Mba worked. Having accommodated her desire not to be rostered on Sundays for a period, the Council decided that it could no longer continue to do so. Following an unsuccessful grievance, Mrs Mba resigned.

It was accepted that the requirement to work Sundays was indirectly discriminatory. The argument was focussed on issue 5 above: whether the justification defence was available. There was no dispute that the Council had a legitimate aim so that the argument was focused, narrowly, on the question of proportionality. It was not a case, therefore, directly concerned with what one might call “the unresolved Eweida question”.

The Employment Tribunal had, in assessing proportionality, taken into account three specific factors. Only one matters for present purposes: the Tribunal had taken into account the fact that sabbatarianism was not, in its view, a “core component of the Christian faith”. A lot of Christians work on Sundays.

Christians might take the objection that judging what religion requires by what adherents actually do is a misguided exercise. We are all sinners. The Court focused on a rather different issue: whether the number of people affected was relevant to justification.

Maurice Kay LJ decided that that the Tribunal had erred in its approach to justification. It should not have been asking how many Christians were affected. It should have been looking at the extent of the impact on sabbatarians, i.e. those who shared Ms Mba’s particular belief. Once one was satisfied that others were affected adversely (so as to jump hurdle 3), the number of those affected was not something that was relevant to the assessment of proportionality. He specifically did not place reliance on either Article 9 or Eweida which he considered to be a case that was “entirely fact sensitive”.

Elias and Vos LJ took a different approach – one that depended upon the impact of Article 9. Patrick Elias (whom I adore with a near religious fervour) tackles the unresolved Eweida question head on. He says the “group disadvantage” requirement (ie, hurdle 3) cannot be read down. Reconciling the domestic legislation with the Eweida decision will in practice, therefore, either take a differently minded Court of Appeal, the Supreme Court or legislation. Article 9 could be used, however, to determine how the proportionality question should be answered. The effect of Eweida was that:

It does not matter whether the claimant is disadvantaged along with others or not, and it cannot weaken her case with respect to justification that her beliefs are not more widely shared or do not constitute a core belief of any particular religion.

Both Elias and Kay LJJ took the view that the smaller the group that shared a claimant’s belief the easier it should be to accommodate it. If number of adherents was a relevant issue, therefore, it had the opposite effect to that which the respondent might have supposed.

With all three judges deciding that the Tribunal had erred in law, did Mrs Mba win? Nope. It was decided that since there was in practice no way of accommodating Mrs Mba’s beliefs, the outcome would have been no different even if the Tribunal had adopted he correct analysis.

6 thoughts on “Mba, Article 9 and the test of Indirect Discrimination

  1. So if Ms Mba was the only Christian who believed that one should not work on a Sunday Elias LJ would have found that, despite Eweida, she had failed to show indirect discrimination because there was no group disadvantage? I find that hard to swallow. Its obiter in this case, however, as it was accepted that the issue was proportionate means of achieving a legitimate aim. Presumably the courts can have another go at this if a unique belief ever crops up.

    I think the best judgement is from Maurice Kay LJ who made the point that one has to consider the impact of the PCP not on Christians as a whole, but on those who share the (by no means unique) belief of Mba that one should not work on a Sunday. We need to look at the specific belief of the claimant and the affected group, not just their broad religious affiliation.

    • You are surely right that the group disadvantage point is obiter – although I don’t fancy trying to persuade an ET or the EAT to the contrary.

      Maurice Kay still requires group disadvantage – it’s just that it is defined by reference to belief and not religion (Para 17).

      • Yes I think he’s wrong about that. I never liked the group disadvantage point even before Eweida. I don’t see how a disadvantage that ‘would’ cause a substantial disadvantage to those sharing the belief needs evidence of a group of people who actually share it to require justification. After Eweida I really don’t see how the point can be sustained. The Courts seem willing to write whole paragraphs into the law and delete others in order to comply with Human Rights or EU requirements. I don’t see what would be so hard about adopting an interpretation that can easily fit with the words as written.

        I take your point about whether an ET or the EAT would be prepared to take that step given what the Court of Appeal has now said though. And I doubt its something that is likely to crop up any time soon.

  2. There is a really abstruse point about Section 19 that I fear is too geeky even for this site. 19(1)(d) deals with personal disadvantage. It now seems to be satisfied where a PCP “would” put “B” at the relevant disadvantage. In other words it seems to cover a situation where the PCP is being “applied” but is yet to result in a disadvantage. So far as I can tell, this conditional formulation is new in 2010 and it is unclear to me whether it was intentional or not.

  3. I’ve always thought the law took a wrong turn when concentrating on group disadvantage. Step 3 uses the phrase ‘puts, or would put’. That conditional wording, to my mind (and absent all the cases!) allows a claimant to align themselves with a hypothetical group and show group disadvantage even where no other person in fact shares the particualr belief in question.

    Karon Monaghan QC tried this line of argument in the Court of Appeal in Eweida, but it was dealt with pretty peremptorily (see para 16 and 17). Maybe the ECtHR’s approach to Article 9 opens the way for it to be re-run?

    • I am with Darren who nails it. Whatever the degree of unease with religious claims, it is questionable whether other new interpretive filters/glosses should be ‘read-in’. The ECtHR were fairly clear in Eweida & Ors that group disadvantage (advocated by Sedley LJ et al in the Court of Appeal)is not the test to be applied in relation to A9 (para.82). If domestic legislation is incompatible with such a reading then so be it, but as the able Mr Newman illustrates this is plainly not the case. Have I missed the problem here?

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