It is illegal to force staff to work on day of worship, court rules

Landmark judgment bars employers from forcing employees to work on worship day. [iStockphoto]

It is illegal for an employer to force an employee to work on his or her worship day, the Employment and Labour Relations Court has ruled.

In a landmark judgment on labour rights, Justice Bernard Manani declared it is against the right of worship and discrimination for an employer to put an employee in a fix to choose between either God or work.

Following the finding, Justice Manani ordered a city hospital to pay Scoline Anyango Sh2.5 million for unfair termination.

He was of the view that in as much as Anyango's involvement in a budget meeting, which she was to attend, was important to the hospital, her right to worship was equally significant and it ought to have balanced the two.

Justice Manani asked why the hospital could not schedule the meeting on a later date all managers were available.

He observed that in the arrangement between the hospital and Anyango, she was required to attend work one Saturday of every month.

"There is no doubt that the respondent's (the hospital) budget-making process was of critical importance to it. It is also clear to me that the claimant's (Anyango) freedom of religion was of equal significance to her. The Constitution obligated the respondent to respect and protect this right. It was up to the respondent to find a way of balancing its business interests with the claimant's freedom of religion without prejudicing the latter," said Justice Manani.

He further found the hospital's arrangement was putting the employee between a rock and a hard place. "The evidence on record leaves me with little doubt that the claimant had been subjected to unnecessary hardship at the workplace because of her religious beliefs. Her faith requires her to observe the Sabbath every Saturday. Yet there is evidence that the respondent made every effort to push the Claimant into compromising on this requirement," the judge added.

Anyango, a Seventh-Day Adventist worked with the hospital as manager until April 5, 2018, when she was fired.

In her case, she explained that her problem with her employer was a budget meeting that fell on her Sabbath day. Anyango told the court that her employer knew she did not work on Saturdays.

Further, Anyango testified that the hospital had in fact made a compromise in August 2016 that would see her work from Monday to Friday to accommodate her worship day.

Anyango narrated that on February 21, 2018, the hospital held a budget approval. However, the Hurlingharm branch failed to sail through. She was then asked to make adjustments to the proposal and present the revised document three days later, which fell on a Saturday.

According to her, she made the adjustments, asked one of her team members to present it on her behalf, and wrote to one of the hospital's management members to excuse her. But her request was denied. When Anyango failed to show up, her employer dismissed her on account of failing to attend a critical activity.

She said on several occasions, she had been forced to choose between her faith and her job, unlike her colleagues who worship on Sundays since nobody was forced to report to work on Sundays.

In response, the hospital argued that the right of worship is not absolute. It asserted that although it accommodated her for three Saturdays, Anyango was not entitled to special way as it would in itself be discriminatory to other employees.

The hospital stated that she was not fired because of her religious beliefs but her failure to heed instructions.

Justice Manani disagreed, and stated that from the response, her right to worship meant nothing to it. He said delegation of her role was enough compliance with the instructions.

"The insistence by the committee that only the claimant and nobody else presents the budget statement at the session even when it was clear that this would infringe on the claimant's freedom of religion is disturbing," said Justice Manani.