The conventional 9 to 5, Monday to Friday, working week is increasingly becoming a thing of the past. People are now working more flexibly during the week. Conversely, people are also expecting greater access to services at the weekend, which means more of us are working at weekends.
The right to opt out of working on Sundays and to be protected when exercising that right is currently limited to shop workers. This was seen as a necessary protection when the laws on Sunday trading were first introduced. That right is now being considered in a wider context.
A devout Christian, Celestina Mba, has launched a test case in the Court of Appeal for the right not to work on a Sunday. Ms Mba resigned as a children’s care worker with Merton Council after bosses said they could not guarantee that she would not be put on Sunday shifts.
The employment tribunal rejected Ms Mba's claim of indirect discrimination. Merton Council argued that its actions were justified as continuity of care was a nationally required aim and that a lack of continuity increased the risk of behavioural changes in those children who would have difficulty in communicating going unnoticed. Following a hearing in December 2012, the EAT held that it was legitimate for Merton Council to ask full-time staff to work on Sundays, in rotation.
The case of Eweida v United Kingdom then considered the right of Ms Eweida, an employee of British Airways, to wear a visible cross, which was in breach of British Airways' uniform policy. Article 9 of the European Convention on Human Rights provides that there is a right to freedom of thought, conscience and religion, but a qualified right to manifest one's religion or beliefs. This is subject to 'only 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'. On 27 May 2013, the European Court of Human Rights held that the domestic courts accorded too much weight to British Airways' desire to project its corporate image. Ms Eweida's cross was discreet, and there was no evidence that the wearing of items such as turbans and hijabs, by other employees, had any negative impact on British Airways' brand.
Ms Mba is expected to argue in the Court of Appeal that an employer has a duty to accommodate the beliefs of a Christian employee and that the ruling in Eweida implies that Article 9 of the European Convention on Human Rights also protects the wish to observe the Sabbath as a day of rest.
This week’s proceedings are seen as a test case which, if Ms Mba is successful, could potentially allow Christians the right not to work on a Sunday in order to observe the Sabbath as a day of rest. It may also give other religious groups the right to time off for religious observance. For example, it may see Jewish people permitted time off work from Friday evening to Saturday evening, and Muslims allowed to observe Fridays as a day of worship.
For more information about where an employer stands on Sunday working, and for advice on managing requests for time off for religious observance and other reasons, please do not hesitate to contact any member of the team.