I run a restaurant and one of the waiters who normally works at weekends has gone off work on sick leave. As I am reluctant to hire a new employee, the rest of the staff have been advised that they will have to cover his shifts while he is off. Although most of the staff do not have a problem with this, two employees have advised that they cannot work on Sundays for religious reasons. How do I handle it?


Amanda Magee writes:


Readers will be aware that shop and betting workers have the right, irrespective of religion, to refuse to work on Sundays. However, whether or not other categories of workers can be required to work on a Sunday depends on the wording of the employee’s contract of employment.

If the contracts do not require the employees to work on Sundays, or allow you to ask them to work on Sundays, then you cannot force them to do so without changing the terms and conditions of their employment. If that is the case, unless the change is agreed between you and the employees, making the employees work on Sundays would amount to a breach of contract. If, however, the contracts state that employees can be asked to work any day of the week, then you can require them to work on Sundays if necessary.

However, whilst the contracts may not prohibit you from requiring the employees to work on Sundays, there is a risk that they will argue that you are indirectly discriminating against them on the grounds of their religion. If that is the case, you will have to demonstrate that there is a genuine business need that would objectively justify the requirement for these employees to work on Sundays.

In the case of Williams-Drabble v Pathway Care Solutions Limited, the Tribunal found that the employer had indirectly discriminated against the Claimant when they introduced a work rota requiring all employees to be available for work on Sunday. Ms Williams-Drabble had advised the employer at interview that she was unable to work Sundays for religious reasons, and the scheduling of the work rota conflicted with Ms Williams-Drabble’s usual church service as a practising Christian. The Tribunal held that the new rota, which applied equally to all employees, had the effect of putting practising Christians at a disadvantage.

Similarly, in Estorninho v Zoran Jokic, the Tribunal found that the Claimant had suffered indirect discrimination for refusing to work Sundays. The Claimant chef working in the Respondent’s delicatessen was a devout Catholic and his faith required him to abstain from work on Sundays and other holy days. In the Tribunal’s view this put all practising Catholics at a disadvantage as it would prevent them attending worship and abiding by the Catechism. The Tribunal accepted that the treatment could be justified but it was not proportionate to instruct the Claimant to work on Sundays without discussing this with him and the Claimant’s colleague and trying to find ways of avoiding him having to work on Sundays.

On the other hand there have been cases which have found for the employer, and it is noteworthy that a major factor in favour of the Christian employees in both cases above seems to have been the employers’ off-hand attitude and the lack of any cogent arguments on the issue of justification.

In James v MSC Cruises Limited, a Seventh-Day Adventist failed in her argument that being required to work on Saturdays was against her faith. In this case the Tribunal found that there was a compelling business need, reflected in both the interests of the business and the other staff, which outweighed the disadvantage to the Claimant.

Furthermore, in Eweida v British Airways plc the employer had a need for employees to work shifts on any day in the week and operated a system under which there was sufficient flexibility to allow employees to swap shifts. However, weekend working was very unpopular among the whole workforce, and the tribunal had very little sympathy for the Christian employee’s argument that her religious beliefs entitled her to preferential treatment in the allocation of shifts, so as to guarantee that she would never have to work on Sundays. The Tribunal indicated that there was a requirement to ensure fairness between employees of all faiths and between religious and non-religious employees. (Although this case has progressed to the European Court of Human Rights in relation to the wearing of crosses in the workplace, there was no further argument beyond the Employment Tribunal about the Sunday working issue.)

In the much more recent case of Mba v London Borough of Merton, a Tribunal ruled that it was acceptable for a Christian worker to lose her job for refusing to work on Sundays. Only limited details of the claim are currently available publicly, but according to news reports, Ms Mba, a devout Christian, was employed by the Council to provide respite care for children with severe learning difficulties at a children’s home run by the Council. Ms Mba took the role in 2007 and initially was not required to work Sundays although she was contractually obliged to do so.

The following year, Ms Mba was told she would need to work Sundays. When she refused to do so, she claimed she was threatened with disciplinary action and subsequently resigned in 2010. She argued she had been constructively dismissed and discriminated against on the grounds of religion. In support of her claim, she argued she had been prepared to work night-times and Saturday shifts, or would have accepted less pay, in order to be able to observe Sunday as a rest day. She also argued that a Muslim colleague had been able to take Fridays off for worship.

In making its decision, the tribunal took account of the employer’s attempts to try to accommodate the Claimant’s religious beliefs – it had suggested she could attend a church service on Sundays and then come to work afterwards. The tribunal also took account of evidence provided by the former bishop of Rochester, Michael Nazir-Ali, who said, “Some Christians will not work on the Sabbath (except for mercies); others may work only in an emergency. Some Christians will want to wear a cross to manifest their faith; others will manifest their faith in some other way. What is important is reasonable accommodation by employers of religious faith and practice.” The barrister acting for the Council said this implied that not every Christian would refuse to work on Sundays.

The tribunal ruled that the employer had not made any guarantees to Ms Mba about not having to work Sundays. It concluded that while the Claimant’s belief was “deeply held”, it was not a “core component” of Christian faith, and having the whole of every Sunday off for religious reasons was not essential. The tribunal also found no evidence that the Muslim colleague had been given time off on Fridays to attend prayers at a mosque.

Although the written judgment has not yet been released, the decision has already been the subject of criticism, and lawyers for Ms Mba have indicated that they would consider an appeal over the Tribunal ruling.

Although the written judgment has not yet been released, the decision has already been the subject of criticism, and lawyers for Ms Mba have indicated that they would consider an appeal over the Tribunal ruling.

From a practical point of view, before deciding whether or not you should require these particular employees to work on Sundays, you should consider the following:

The precise wording of the contracts of employment;

•  Whether the employees advised you during interview that they would not be available to work on Sundays for religious reasons;
• Whether allowances are made for other employees who cannot work on a particular day of the week;
•  Whether the employees would be willing to work for a limited number of hours on Sundays or agree to work only a set number of Sundays in a particular period;
• Whether other members of staff would be prepared to work on Sundays so that these employees wouldn’t have to;
• Whether allowing these employees not to work on Sundays would amount to preferential treatment over other members of staff; and
• Whether there is a legitimate reason that would objectively justify the requirement for these employees to work on Sundays.

An employer’s ability to justify requirements to work on particular days will be very dependent on the circumstances of individual cases, and unless the employer has a sound economic reason for making this demand, there is a risk that the requirement could be seen as indirectly discriminatory.

Whatever decision you make, try to be as open and transparent as possible, and show your employees that you have done your best to accommodate the situation.