Here’s an update to last week’s post about a movement to curtail Sunday shopping in Europe. In that post, I speculated that allowing stores to open Sundays might create pressure for observant Christian employees: skip church and report to work, or lose your job. It turns out this concern isn’t speculative. In England, a High Court judge recently ruled that employers may discipline observant Christians who refuse to work Sundays.
The case involves Ms. Celestina Mba, who worked as a caregiver in a government-run children’s center. A devout Baptist, she goes to church every Sunday and does not wish to work on that day. When her employer—a government agency, note, in a state with an established church—pressured her to work Sundays, she quit and sued for employment discrimination. She lost at trial and, last month, in the High Court as well.
Why did she lose? English law allows employers to require employees to work Sundays if there is “a legitimate business need.” According to press reports, though, the High Court did not rely on that principle in Ms. Mba’s case. Rather, the court reasoned that Christianity did not require Sabbath observance in the first place. Plenty of Christians work Sundays, the court noted; only a few, like Ms. Mba, see it as a problem. As a result, religious freedom was not seriously implicated by requiring her to work. Employers, the court reasoned, do not need to accommodate outliers like Ms. Mba.
Now, this reasoning is very odd. The fact that some of those Christians who work Sundays might be doing so because they have to—that is, because otherwise they would lose their jobs—apparently did not occur to the court. Moreover, the fact that many Christians see no problem with working Sundays doesn’t mean that other Christians cannot have a legitimate religious objection. Courts don’t usually require that practices be “mainstream” within a religion in order to receive legal protection. Besides, attending church on Sundays is hardly an esoteric practice in Christianity. Many Christians are known to do it—though not in today’s England, I guess.
Something strange is happening in the U.K. It’s not just Ms. Mba’s case. In a separate case currently pending at the European Court of Human Rights, the British government has taken the position that employers may fire Christian employees who wear crosses to work. Again, the argument is that religious freedom doesn’t apply in such situations. Why? Because wearing a cross is not “generally recognized” by Christians as a religious requirement: most Christians don’t wear crosses, so individual Christians don’t have a right to wear them. But where’s the sense in that? Most Christians don’t carry Bibles around with them, either. Does that mean forbidding Christians from carrying Bibles would not implicate religious freedom?
We’ll see in the next several months what the European Court makes of all this. I wonder whether Ms. Mba will apply to that court for relief in her case. I note she is represented by British religious rights lawyer Paul Diamond, who argued the cross-wearing case at the European Court last fall. You can watch the argument here.
Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.
January 4th, 2013 | 10:30 am
The supposed “issue” of wearing a small cross on a necklace in the case of the BA employee and the nurse is really, really worrisome about the drip, drip, drip as Christians (mostly, it seems) are slowly but surely disallowed to express their religious beliefs even in the smallest manner possible.
January 4th, 2013 | 2:55 pm
Shorter version of a longer comment, the article says she claims to have asked for Sunday’s off when she first took the job. If true then she should win the case on that ground but otherwise she should not win.
This has nothing to do with ‘expressing’ religious beliefs. This sounds like an orphanage and she took a job providing care to children. Do children not need care on Sundays? If so then the employees should work on Sundays. Religious freedom is not a right to demand that your religion never inconvenience you. If you absolutely believe you should not work on Sundays, then you are going to be a disadvantage in the job market to those who are ok with working on Sundays. A person who is seriously religious will not only have some conditions they have to place on their work but will have to exclude entire careers from their lives.
January 4th, 2013 | 6:49 pm
This case should never have been fought as a case about the human right to express one’s belief. It should have been fought on the basis that the employee said she had a prior commitment every Sunday that meant she could never work Sundays, and the employer accept her job application on that basis, and then reneged on the deal.
There are millions of people who need to have to SAME day off every week. These include the minority of Christians with commitments to fulfil leading roles in the Sunday activities of their churches that others in the same churches don’t have. But they also include non-resident parents who have court contact orders to pick up their children from their ex-partners the same time every week. They include children with disabled and elderly parents whom they take shopping once a week. They include wives who want their days off to be the same as their husbands, or who need to have time off when their husbands are working, or when their children receive weekly chemotherapy. And so on.
Trying to make a religious rights case out if this straightforward case of an employer’s broken promise, has been the ruin of Ms Mba. Barrister Paul Diamond is to blame.
January 5th, 2013 | 3:27 am
In terms of prior commitment I strongly suspect the woman only has a verbal agreement that she didn’t have to work on Sundays. An object lesson here in the value of getting things like this in writing, esp. if they are going to be deal breakers for you.
January 5th, 2013 | 4:38 pm
It’s odd to me that they didn’t rely on the ‘legitimate business need’ principle. Was there no ‘legitimate business need’ for work on Sunday in a respite center for children with learning disabilities? I wouldn’t think a Christian is being persecuted if he/she is asked to work the occasional sabbath in this situation. Jewish, Muslim and Christian physicians are expected to care for sick patients on the sabbath when the need arises; no one sees this as persecution.
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