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Sunday, 13 January 2013

Mba v Merton London Borough Council: religion and judgments

The case of Mba v Merton London Borough Council UKEAT/0332/12/SM has recently been in the news. The substantive dispute in the case provides a taster for Tuesday’s scheduled Strasbourg judgment on four religion and the law cases. The case also gave rise to an interesting debate in the comments section of the UKHR Blog last week on the form of judgments, a subject on which I happen to know something thanks to my day job. I will offer a few comments on the substantive case first - reserving a fuller consideration of the issues raised until after Tuesday.

The facts

The claimant was a residential care officer for the respondent local authority. Under her contract of employment, she could be required to work on a Sunday. It was the authority’s aim, and required nationally, that continuity of care should be maintained as far as possible. There were sound reasons for this: a lack of continuity increased the risk of significant behavioural change in those children who had difficulty in communicating going unnoticed.

After a time relations broke down between the parties and the claimant raised a grievance. The authority rejected the grievance and scheduled her to work two weekends in three in accordance with the normal rota. That would involve her actually having to work on a Sunday for the first time. She did not turn up to work and, following disciplinary action, she resigned with express regret.

The proceedings

She brought a complaint in the employment tribunal, contending that she had been subject to indirect discrimination, contrary to reg 3(1) of the Employment Regulations 2003 (since replaced by the Equality Act 2010).

Regulation (3)(1) provided:

“For the purposes of these Regulations, a person (“A”) discriminates against another person (“B”) if—


(b) 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—

(i) which puts or would put persons of the same religion or belief as B at a particular disadvantage when compared with other persons,

(ii) which puts B at that disadvantage, and

(iii) which A cannot show to be a proportionate means of achieving a legitimate aim.”

The tribunal ruled in favour of the authority and the claimant appealed.

The appeal

Before anyone got excited about the prospect of a point of great principle, the Appeal Tribunal stated (at para [3]):

We should make it clear at the outset of this Judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed. No such broad general issue arises. The questions raised must be determined in the specific circumstances of this particular case alone.

The Appeal Tribunal also noted also that the authority was obliged by s 6(1) of the Human Rights Act 1998 to act in a compatible fashion with the European Convention on Human Rights, but it was felt that the 2003 Regulations actually imposed a higher burden on the authority than art 9 of the Convention, so the point did not add anything (though there was some evidence Strasbourg was eliding the two tests) (see [16] of the judgment).

The ruling

Three findings of the tribunal were under appeal. The first was the finding that not working on Sunday was not a core component of the Christian faith. The second was the test applied by the tribunal, which was one of “anxious scrutiny or intensive review”. The third was that it did not place the onus on the employer to justify the proportionality test, but instead (wrongly) placed it on the claimant.

The first test is seriously problematic. It involves first the employer then possibly a future court or tribunal trying to investigate what any particular religion’s tenets entail. This is not a task to which they are suited. Moreover, as we saw with the well-known case of Nicholson v Grainger [2009] All ER (D) 59 (Nov),  it poses the problem about other, non-religious beliefs and practices that have the same level of importance to other people and yet will not qualify for a religious exemption. Say person A has a strong family tradition of handing down a dagger from father to son and carrying it as a reminder of a forefather’s great performance in battle. Person B is a Sikh and carries a dagger out of religious beliefs. Person B has an exemption from the criminal law but person A does not. The number of similar examples is limited only by the imagination.

As to the second test, requiring an employer to scrutinise any belief and claimed exemption anxiously is imposing yet another layer of red tape on Britain’s hard pressed employers.

So too the third requirement of any onus being on any one to satisfy anyone else whether a claimed exemption is justified.

In the event, the Appeal Tribunal held that the tribunal had reached the correct result on the facts of the case and so dismissed the appeal.

In a nutshell, there should be a distinction between direct and indirect discrimination. It is one thing – and a completely unacceptable one – if an employer states that it will not hire people of a certain faith (unless the employer is a religious organisation). It is another thing if the employer has legitimate reasons to operate on a Sunday: if so, then an employee should not accept the job and then later claim an exemption to be enforced by the state.

Of course it would have been different if the employer had promised a particular exemption as part of the employment contract. In this case there was a dispute as to whether the claimant had been promised at the outset that she would not have to work Sundays. The tribunal ruled on this point in favour of the authority: the authority had thought it likely that the rota could be organised so that the claimant could work every Saturday and have every Sunday off. This fell short of a promise never to require the claimant to work on Sundays, but it was an offer to take reasonable steps to accommodate her wishes at least in the short term.

There is a good post on the case here. I will not write anything further on the point until Strasbourg has ruled on Tuesday. But it is worth saying something about the manner in which the Appeal Tribunal’s judgment was given. It was delivered ex tempore, that is to say orally, with no note of the judgment being available until some weeks later. As a result, once word of the judgment got out, the papers were able to fashion another of their favourite headlines about Christians being persecuted.

The form of judgments

Once upon a time, ex tempore judgments were the norm in almost all courts, and were usually given at the conclusion of the argument. The Latin abbreviation one sees on old law reports “cur ad vult” (“the court took time to consider”) meant a “reserved judgment” – one delivered some days or longer after the case had finished, though it could still be read out rather than given in written form.

Nowadays extempore is still the usual method even in some courts of record, such as the Court of Appeal, Criminal Division and the Administrative Division of the High Court. About a third of the time the Court of Appeal, Civil Division delivers judgments in the same way. It can be frustrating for those interested in analysing cases, although it is also an indication that the judge does not think that the case is of general importance.

LexisNexis (for whom I work), Lawtel and the ICLR still have traditional law reporters in court recording extemps cases and producing scholarly law reports of them (to use the term adopted by Lord Neuberger in his first annual Bailii speech "No judgment-No justice"). There are also press reporters who attend the Royal Courts of Justice and report extempore judgments to the papers, though they are fewer in numbers nowadays. But none of the above would ever be likely to report extempore judgments from the Employment Appeal Tribunal as it would not be worth powder and shot to have someone attending the Tribunal every day as they do the RCJ; instead all organisations simply report the judgments when the transcripts become available.

It follows that there is still scope for misreporting when one has heard the result of the case, or listened to but not fully grasped the meaning of an oral judgment (not a slight against any reporter or lawyer since complex judgments are not always understandable to the best of us without repeated re-reading). Sometimes extemps are given in urgent matters, though they need not be: the judge could simply announce the result of the case with reasons to follow. But I don’t think that means that the practice of extemps should be ended, since it is probably more efficient for unimportant or knock-down cases to be disposed of at the conclusion of the hearing. What should happen instead is that the press ought to be more circumspect when reporting a case for which the full transcript has yet to appear - well, hope springs eternal.

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