An update on an earlier post about an English appellate court decision on the right of Christian employees to decline to work on Sundays. The decision was released to the public last week, and it turns out that initial press reports were a bit misleading.
The case involved Ms. Celestina Mba, a caregiver in a children’s home who wished to abstain from work on Sundays for religious reasons. When her employer told her she would have to work Sundays, Ms. Mba sued for religious discrimination. A lower court held for the employer and, last month, an appellate court affirmed.
Under English law, employers can require Christian employees to work Sundays if there is a legitimate need and the work requirement is proportionate to that need. Press reports, particularly this one in the Telegraph, made it seem like the appellate court had ignored that balancing test and held categorically that Sunday observance is not a core Christian belief and that Christians could be required to work.
As it turns out, the appellate court did discuss the balancing test. The facts of the case were these. The center had accommodated Ms. Mba for two years, but had ultimately determined that allowing her to stay home Sundays put too great a strain on other staff and threatened to disadvantage the children. These were surely legitimate business needs. And the center had only required Ms. Mba to work some Sundays — roughly two out of three. This seemed a proportionate response to that need.
So where did the language about Sunday observance not being a core Christian belief come in? The lower court had reasoned that, because many Christians do not feel an obligation to abstain from Sunday work, abstention could not be considered a core Christian belief. The appellate court criticized the lower court’s language on this point, but basically agreed with the lower court’s reasoning. In determining whether a work requirement were proportionate to a legitimate business need, the appellate court explained, one had to consider what percentage of a faith community the requirement would affect. If the requirement would affect a large segment of the community, that would suggest that the requirement were disproportionate. If, by contrast, the requirement would affect only a small percentage, that would suggest the opposite. Here, the appellate court reasoned, in requiring Sunday work, the center could take into account the fact that many Christians would have no objection at all to working Sundays.
This is all a bit complicated, the way legal opinions often are. Frank Cranmer at the Law and Religion UK blog has a good description of the opinion, if you’re interested in more details. The bottom line is that the appellate court’s decision was narrower and more subtle than the Telegraph’s report conveyed.
Why did the Telegraph get it wrong? The appellate court’s judgment was announced on December 13, but the opinion was not released to the public until January 10. The Telegraph reported the story at the end of December, before the opinion was available. Apparently the reporter relied on lawyers’ accounts of the case.
Mark Movsesian is Director of the Center for Law and Religion at St. John’s University.
January 13th, 2013 | 5:48 pm
“The center had accommodated Ms. Mba for two years, but had ultimately determined that allowing her to stay home Sundays put too great a strain on other staff and threatened to disadvantage the children.”
This sentence is NOT (as stated) one of the facts found in the judgment.
January 13th, 2013 | 6:47 pm
I find that an interesting ruling. Many Jews work on Saturday, but it would hardly be true to say that not working on the Sabbath was not a “core Jewish belief,” even if only a minority of Jews in particular Jewish sects continue to follow it. Was the defendent from such a Christian sect? Or was she just a “freelance” who decided not to work Sundays on her own?
January 13th, 2013 | 7:02 pm
What if she were? Do the dictates of her own conscience warrant less respect because they are a minority view?
“This Jesus fellow says that only people who are without sin should cast the first stone at an adulterer. But is that what others say — or is he just freelancing?”
January 13th, 2013 | 8:03 pm
@ Gail Finke
The ruling itself, isn’t all that “interesting” to me, but the case raises all sorts of interesting issues, and several boring issues, some of which the court considered before making the ruling.
I have uploaded a PDF copy of the judgment to:
http://slavery.org.uk/Mba_v_Merton.pdf
I’ve commented on Ms Mba’s story quite a bit, as you can see if you google
Mba Sunday “John Allman” week
Ms Mba wasn’t a member of a Christian “sect” as such. She was (and presumably still is) an African believer in the UK, who attends a baptist church that has its main meetings on Sundays.
The point I’ve been hammering home is that the Ms Mba’s aspiration to attend church on Sundays nearly every week, clashed with her employer’s rota, but that a desire to play golf every Thursday would also have clashed just as badly. So, instead of special pleading for people of faith, she should have used her right to respect for her private life, to attack the rota, which itself is an attack on the institution of the week.
The week is a side effect of the Sabbath that I, for one, believe G_d intended. Can you imagine how much more complicated it would be to start (say) a chess club, if the days that potential members said they could attend meetings, varied from week to week for each of them? For some of them (Ms Mba and her colleagues), not one day in the seven was a day they could call their own every week.
The issue that is most often not understood is what the higher court explained that the lower court had been rambling on about, when it unwisely used the ambiguous phrase “core belief”. When you get up to speed on THAT issue, I suspect you won’t find it as “interesting” after all.
January 14th, 2013 | 6:44 am
Missing from the hubbub over respecint ‘minority religious views’ and ‘conscience’ is the fact that the children in this center needed care 7 days a week. Is it unreasonable for an employer to expect employees to provide for the needs of the institution or not? If so then it’s perfectly resonable for the employer to demand the employees share taking on the Sunday shift.
A ‘minority’ view here isn’t the danger IMO, I wouldn’t be surprised if the majority of employees were Christians which would mean if enough of them got tired of covering for a single employee who always got Sundays off for ‘religious reasons’ the employer would be hit with a real staffing problem and he couldn’t solve it by trying to prove whether or not the employees demanding Sunday were really attending services.
January 14th, 2013 | 8:31 am
@ Boonton
“Missing from the hubbub … is … that the children in this center needed care 7 days a week.”
That’s covered in the judgment.
“Is it unreasonable for an employer to expect employees to provide for the needs of the institution or not?”
When they are on duty, no. That is not to say that each employee should have to be willing to be at work 24/7 though.
“If so then it’s perfectly reasonable for the employer to demand the employees share taking on the Sunday shift.”
It does not follow logically that, because an employer has a duty of providing service at every time of day, on every day of the week, the employer can only offer jobs to individuals who are themselves willing to be at work at every time of day, on every day of the week.
January 14th, 2013 | 10:14 am
John,
If the employer is lucky enough to have employees who want different days off, then he can hire someone who insists on Sundays off, offset by someone else who wants Mondays off and so on. I imagine this is how the 24hr aspect is often handled with some employees specifically hired who are willing to do nights but not days and vice versa. But most employees will want weekends off and most will want to work days but not night.
But if the employer has only a small pool of employees it is within his right to insist that the entire pool share the ‘undesireable’ shifts and this creates a real issue if employees as a matter of right can demand a day each week off for religious purposes. Again imagine if 70% of the workers identify as Christians and word gets out the way to always get weekends off is to declare Sunday a day you can’t work. The end result is either for the employer to conduct inquisitions to determine whose demanding Sunday off for serious religious reasons and whose just trying to keep their weekend free. Or unfairly make non-christian (or Christian workers who are more honest about work requirements) get burdened with all the Sunday shifts.
January 14th, 2013 | 12:20 pm
Another option for the employer is use the basic rule in capitalism and Christianity: the worker is worth is wages. If a particular shift is more onerous, compensate by higher wages. Many places offer time and a half for hours outside the work week (holidays and weekends)
Links
Blogs
Find Us
Contact