In Mba v London Borough of Merton the EAT held that an employment tribunal was entitled to find that a requirement for full-time children’s care workers to work on Sundays on a rota basis did not indirectly discriminate against a Christian. The aim of ensuring an appropriate gender balance and seniority on each shift, while operating a fair, cost-effective service delivering continuity, was legitimate and could not be achieved by other means, so it was proportionate. Furthermore, the tribunal had not impermissibly adjudicated on what was 'core' to Christian belief. The tribunal was purely reflecting the evidence put before it from an Anglican bishop that only some Christians felt obliged to abstain from Sunday work. It was therefore permissibly commenting on the degree to which Christians numerically would be affected, and not attempting to tell them what was important in their faith.

Comment: The EAT made it clear that its judgment did not 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”. Each case rests on its own facts and where indirect discrimination is to be justified employers must have a legitimate business aim in place and be able to show proportionality, i.e. there must be no feasible alternative to achieving the aim, plus the benefits to the organisation must outweigh the discriminatory effect – the ‘balancing’ test.