Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932

Case No A2/2004/0432

[2005] EWCA Civ 932

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE

EMPLOYMENT APPEAL TRIBUNAL

RIMER J PRESIDING

UKEAT/0438/03/SM

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Monday, 25 July 2005

Before

LORD JUSTICE MUMMERY

LORD JUSTICE RIX

LORD JUSTICE NEUBERGER

Between

STEPHEN COPSEYAppellant

WWB DEVON CLAYS LTDRespondent

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

MR PAUL DIAMOND (instructed by Messrs Taylor & Emmet) for Appellant

MR THOMAS LINDEN & MR JAMES LADDIE (instructed by Lucy Atherton of the EEF) for Respondent

Judgment

Introduction

[1]What impact (if any) does

Article 9 of the European Convention on Human Rights

and Freedoms have on an unfair dismissal claim brought by an employee against a private sector employer? The context is that of a Christian employee, whose sincerity is not in question, seeking to manifest his religious beliefs by observing Sunday as a day of rest accordance with the Fourth Commandment (Exodus Chapter 20)- “8.Remember the sabbath day, to keep it holy. 9. Six days shalt thou labour, and do all thy work. 10. But the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates. 11. For in six days the Lord made heaven and earth, and all that in them is, and rested the seventh day: wherefore the Lord blessed the sabbath day, and hallowed it.”

[2]Adherents of other religions also manifest their beliefs by abstaining from work on certain days. As pointed out in Employment Law & Human Rights (Robin Allen QC and Rachel Crasnow-2002) at paragraph 9.5 at p137- “ It has long been recognised that the demands of the workplace can come into conflict with both manifesting and changing religion in many different ways: Muslims may wish to visit the mosque on Fridays; Jews may not wish to work on Saturdays; Christians on Sundays…”

[3]Until recently there has been considerably less activity in the English courts and tribunals about Article 9 than about the Convention Articles relating to the right to life, to a fair trial, to private life and to freedom of expression. It is probably only a matter of time, however, before the fundamental and pervasive character of Article 9 will be more fully revealed. If the Article means what it says, it has the potential to be far reaching in its legal, social, economic and political effects. Its subject matter (strongly held beliefs affecting what we live for and how we live) is a unique force in both uniting and dividing human beings in society. The European Court of Human Rights spoke of its fundamental character and its limits in Kokkinakis v. Greece (1993) 17 EHHR 397 at 418-419- “ 31. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and of their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism is dissociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to “manifest [one’s] religion.” Bearing witness in words and deeds is bound up with the existence of religious convictions. 32….. 33. The fundamental nature of the rights guaranteed in Article 9(1) is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs in Articles 8,10 and 11, which cover all the rights mentioned in the first paragraphs of those Articles, that of Article 9 refers only to “freedom to manifest one’s religion or belief.” In so doing, it recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected.”

[4]Under

Article 1 of the Convention

there is an obligation on the Member States to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention. Article 9 is one of the rights and freedoms in Section I of the Convention, which is scheduled to the Human Rights Act 1998 (the 1998 Act).

[5]It has not been argued in this court that the Article can be ignored because the complaint is against an employer in the private sector rather than a public authority employer, against whom there would be an express right under the 1998 Act to invoke Article 9. It should be recorded, however, that no concessions were made about the horizontal effect of the Convention rights.

[6]Article 9 provides that- “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice or observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to 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.”

The issue

[7]Interference with the right to manifest one’s religion is the only ground on which the dismissal of Mr Stephen Copsey by his employer, WWB Devon Clays Limited (Devon Clays), is alleged to have been unfair. Mr Copsey’s case could not be stated more concisely or more powerfully than in his originating application to the employment tribunal:

“I have been unfairly dismissed because I am a Christian.”

For him the Sabbath is a day of rest; it is not a normal working day. Although he was prepared to help his employer on Sundays in an emergency, he made his position clear:

“I will and cannot accept regular Sunday working.”

He was dismissed by Devon Clays when he refused to accept their requirement that he should agree to work on Sundays, if needed. He told his employer that “under no circumstances would he contemplate a job which encapsulated the possibility of Sunday working.”

[8]At the outset the limited context in which the Article 9 point arises should be stressed. It is an unfair dismissal claim brought in an employment tribunal against a private sector employer under the Employment Rights Act 1996 (the 1996 Act). The dismissal arose out of a dispute with the employer about the employee’s working hours. In view of the some of the sweeping submissions made to the tribunals below and to this court, it should be made clear what the case is not about.(1) Although it is in a sense a “human rights case”, the claim is not made under the 1998 Act. Such a claim would face two difficulties: (a) the employment tribunal has no jurisdiction to entertain claims for breach of the 1998 Act; and (b) no such claim could be made by the employee in the ordinary courts in this case under the 1998 Act, as the employer is not a “public authority” within the meaning of section 6 of the 1998 Act.

(2) The case is not about the incompatibility of the unfair dismissal provisions of the 1996 Act and Article 9. In that respect it differs from the claim in R (Williamson & Ors) v. Secretary of State for Education and Employment

[2005] 2 WLR 590

(Williamson) that primary legislation should be declared to be incompatible with Article 9 (in an unsuccessful challenge to section 548 Education Act 1996 prohibiting corporal punishment by staff in schools, the House of Lords held that interference with the Article 9 right was justified under Article 9(2)) .

(3) Although discrimination points occasionally surfaced in the course of argument, this is not a case of direct or indirect discrimination on religious grounds. The Originating Application does not mention discrimination of any kind. The claims set out are for unfair dismissal, breach of Convention rights Articles 8 and 9 and failure to make “reasonable accommodation” for his religious beliefs regarding Sunday as “a day of rest in remembrance of the Lord Jesus.” No claim for discrimination on the ground of religion or belief could have been brought by Mr Copsey under the Employment Equality (Religion or Belief) Regulations 2003, which only came into force on 2 December 2003 after the relevant events in this case had occurred. Those Regulations were made under the European Communities Act 1972 in order to implement an EC Directive. They are concerned with European Community rights not to be discriminated against in employment, and not with Convention rights conferred on citizens against public authorities.

(4) Despite the tone of some of the submissions made by and on behalf of Mr Copsey, this is not a case about religious persecution or religious intolerance. It is a bona fide employment dispute about the possible legal limitations placed by Article 9 on the undoubted right of an employer to set the working hours of those employed and paid by him to work for him and to dismiss an employee who does not keep to the agreed working hours or agree to reasonable changes in them. A conduct reason or some other substantial reason may justify dismissal, provided that it is fair and reasonable to dismiss the employee for such a reason.

(5) On the findings of fact made by the employment tribunal Mr Copsey was not dismissed for “being a Christian.” There was no finding that Devon Clays were anti-Christian or “anti” any other religion or religious practice or observance as such. Devon Clays employed other employees holding religious beliefs and, where possible, attempted to accommodate their beliefs. The reason for Mr Copsey’s dismissal (that being the set of facts known to the employer or beliefs held by him which caused him to dismiss the employee: Abernethy v. Mott Hay and Anderson

[1974] ICR 323

at 330) was held to be his refusal to agree to a contractual variation in his working hours so as to provide that he should work a 7 day shift including a Sunday, if needed. The perception of Devon Clays and of the employment tribunal was that that reason was not in any way connected with his religious beliefs (see paragraph 38 of the extended reasons of the employment tribunal). In their view it was “some other substantial reason” of a kind such as to justify the dismissal of an employee holding the position which the employee held (section 98(1)(b) of the 1996 Act). Mr Copsey, who had an excellent employment record, understandably had a different perception of the reason for his dismissal, namely that, as his refusal to agree was based on a possibility of his being required to work on a Sunday contrary to his sincerely held religious beliefs, he was dismissed for a reason connected with his religious beliefs, that Article 9 was engaged and that his Convention right to manifest those beliefs had been breached. It will be necessary to consider the rival arguments on this point later in the judgment.

The appeal

[9]Mr Stephen Copsey’s appeal is against the order of the Employment Appeal Tribunal (Rimer J presiding) dated 13 February 2004. The Appeal Tribunal dismissed his appeal from the employment tribunal’s decision (extended reasons promulgated on 15 April 2003) rejecting his claim for unfair dismissal against Devon Clays. On a renewed application on 28 April 2004 this court granted permission to appeal.

The Facts

[10]Devon Clays operate clay quarries in Devon and sand quarries throughout the United Kingdom. About 59 employees worked at the site of the quarry near King’s Lynn. There were two principal plant areas: sand processing plants and resin coated sand plants. Mr Copsey was employed as a team leader between 1 March 1988 and 31 July 2002 when he was dismissed. He worked in the sand processing part of the operations along with 11 other employees. There were working shift arrangements Monday to Friday, with frequent overtime on Saturdays and occasionally on Sundays.

[11]In late 1999 and early 2000 Devon Clays won a new order, which substantially increased the tonnage of sand which they needed to produce per year (over 34% increase). It was decided that the only way to achieve the required increase in output was to extend the operating hours. In February 2000 proposals were put to the workforce to introduce a system of annualised hours with 7 day working 24 hours a day based on 12 hour shifts. There would be a rotating shift pattern, which would include some Sunday working. No agreement was signed, but the union accepted the proposal and it was put into operation in about April 2000.

[12]Mr Copsey was one of four operators who were not happy to agree a rotating shift pattern which would include Sunday working, although he did not indicate at that time that his refusal to work on Sundays was due to his religious beliefs. A special arrangement was made allowing the four employees to work on a 6 day basis only. Three of the four agreed that they would be willing to work on Sundays if required. Mr Copsey was paid less due to the fact that he refused to work on a Sunday.

[13]In early 2002 Devon Clays secured a further order at the King’s Lynn plant (a further 8% increase in production was needed). That put further pressure on the operatives who had agreed to the 7 day shift pattern. Devon Clays decided to attempt to bring all twelve operators, including the four dissenters, onto the standard 7 day shift pattern. At a meeting on 6 March 2002 it was stated that there was a requirement for 7 days working by all operatives. The dissenting operatives were asked to consider this. At a further meeting on 27 March 2002 the four operatives were given the option of working the 7 day shift pattern or to consider taking a redundancy package on generous terms. They were asked to consider any other options, which they might like to put forward. Two of them indicated that they were prepared to switch to the 7 day shift pattern. The other two, including Mr Copsey, made no comment.

[14]At a meeting with him alone Mr Copsey made it clear that, although he accepted and understood why Devon Clays required him to change from a 6 day shift pattern to a 7 day pattern, he would not contemplate moving to the 7 day shift pattern as there was a possibility of working Sundays. He was asked whether he would be interested in working in the resin coated sand plant, which operated on a 5 day rotating shift pattern with some Saturday and Sunday overtime working. He indicated that he would not work in that plant, though he later applied for it as late as 22 July. Correspondence followed in which Mr Copsey indicated that he was not prepared to enter into the 7 day shift system. For the first time he indicated that the opposition to Sunday working was on religious grounds.

[15]On 30 April 2002 he was given an ultimatum that he would be dismissed on 31 May unless his agreement was forthcoming. He was given the option of signing a compromise agreement on favourable terms. Further steps to reach an agreement failed after Devon Clays extended the deadline to 31 July 2002, as there were vacancies to be filled in the company, even if he refused to accept the 7 day shift pattern. He was told that he could appeal against the decision to dismiss him if he failed to accept the options put to him. He appealed. His appeal was dismissed. His employment was terminated with effect from the 31 July 2002. He received no redundancy payment.

[16]The tribunal found that Devon Clays had taken soundings from Mr Copsey’s colleagues, who would be disadvantaged if he was made a special case. His colleagues were found to have little sympathy with his position. Mr Copsey was given several opportunities to transfer to alternative positions within the company, for example to a position in the loading yard. He applied for the position of laboratory assistant, but said he was unwilling to accept the salary attached to the position. All jobs included a requirement to work Sundays, if needed, though that was found to be unlikely in the case of the loading yard position. He refused that because the company could not guarantee that he would not be required to come in on a Sunday. He was only prepared to work on a Sunday if there was a genuine unexpected and unavoidable emergency. That did not include production demands. It was not possible to reach an agreement on what would be an “emergency.”

Decision of employment tribunal

[17]The employment tribunal found that Mr Copsey was dismissed because he refused to accept a change to the 7 day shift pattern. His dismissal was not, it was held, in any way connected with his religious beliefs (paragraph 38). His religious beliefs and the desire to manifest them by not working on a Sunday were not the facts which caused Devon Clays to dismiss him. He was dismissed “for failing to agree to new contractual terms”( paragraph 79). The tribunal concluded that the reason was “some other substantial reason” of a kind such as to justify the dismissal of an employee holding the position which Mr Copsey held. It was a sound business reason, an economic necessity for them “in the light of significant increases in production requirements” and not a whim. Devon Clays had taken account of the interests of the employees, consulted them and considered their well-being. They had taken into account the fact that the vast majority of the workforce had agreed to a 7 day shift pattern and that Mr Copsey was isolated in this respect. The unions had been involved in the discussions and had not disagreed with the view that it was necessary to require Mr Copsey to switch to a 7 day shift pattern.

[18]Devon Clays had acted reasonably and done everything that they could. They offered to Mr Copsey other job opportunities in the company. Mr Copsey had declined them, making it clear that he would not accept the terms on which the other jobs were offered. The tribunal held that Devon Clays had discharged any obligation on them to offer him alternative positions. The decision to dismiss him fell within the band of reasonable responses which a reasonable employer could adopt (paragraph 77). His dismissal was fair.

Decision of Employment Appeal Tribunal

[19]The Employment Appeal Tribunal held that there was no error of law in the decision of the employment tribunal and dismissed the appeal. The reason for the dismissal of Mr Copsey was a question of fact for the tribunal. It found that he was not dismissed for his religious beliefs. The only reason for his dismissal was that he declined to agree to the 7 day shift, which was required to generate the level of production needed. Devon Clays knew of his religious beliefs, but did not dismiss him because he held those beliefs or because he wanted to manifest them by observing Sunday as a day of rest. They sought to take them into account, offering him alternative positions in the company. Had he chosen to do so, he could have remained working for Devon Clays in a different job.

[20]As for the 1998 Act, Devon Clays was not a public authority against which a claim could be made. It was not subject to any statutory prohibition on acting incompatibly with the Convention right.

[21]As for Article 9, even assuming that it was engaged on the facts of this case and was capable of affecting the fairness of the dismissal, there was no breach of the Article on the findings of fact made by the tribunal as to the reason for the dismissal of Mr Copsey. The ruling of the European Commission for Human rights in Stedman (see paragraph 34 below) was directly in point, sound in principle and not overruled by later decisions of the Strasbourg Court. If there was incompatibility between work requirements and the manifestation of religious beliefs, an employee in the position of Mr Copsey had a choice: he was free to resign.

Mr Copsey’s Submissions

[22]Mr Paul Diamond appearing for Mr Copsey made a number of points.(1) Article 9 was engaged. Mr Copsey’s refusal to agree to work on a Sunday shift led to his dismissal by Devon Clays. His refusal was a manifestation of his religion. Religion includes religious observance and practice. It covers the observance of Sunday as a day of rest. He refused to work a 7 day shift because it necessitated working on a Sunday. He was dismissed for that refusal. The dismissal was connected with the manifestation of his religion. It was sophistry to assert or find the contrary.

(2) The 1996 Act should have been applied by the tribunal and the assessment of reasonableness of the dismissal made with due consideration for Article 9, as required by the principle of interpretation in section 3 of the 1998 Act. Section 98 of the 1996 Act and the reasonableness of a dismissal were affected by the higher order (or heightened or elevated) Convention rights introduced by the 1998 Act. It is not reasonable for an employer or a tribunal to refuse to take the employee’s religious views into account.

(3) Although Devon Clays are private employers, the employment tribunal is a public authority, which is under a duty not to act incompatibly with Article 9 and to apply section 3 to the construction of section 98. The tribunal must apply a consistent standard to all employees, whether their employer is a public authority or a private sector employer. It failed to apply the 1996 Act with due consideration to Article 9.

(4) The Commission’s decision in Stedman v. UK (see paragraph 34 below)thatArticle 9 was not engaged in circumstances such as this, because the employee was able to resign and be free to manifest his religious observance,was incorrect, inadequate and distinguishable.Article 9 is unaffected by the principle of freedom of contract. The right applies to dismissal from employment. Religious views and observances and practices of employees must be reasonably accommodated having regard to the needs, nature and resources of the employer’s business, the flexibility of the workforce, health and safety factors, and the attitude of the employer.

(5) He referred to provisions (Article 2(5)) in the European Social Charter relating to conditions of work, in particular a weekly rest period coinciding with a day recognised by tradition or custom in the country or region concerned as a day of rest. ( I note that the Social Charter is a treaty ratified by the United Kingdom, but it has not been implemented into English domestic law. The provision is not related to the religious rights of an individual.)

(6) He also referred to the position under Canadian law regarding the duty of “reasonable accommodation” in anti-discrimination legislation. He cited Re Ontario Human Rights Commission v. Simpson-Sears Limited (1985) 23 DLR (4th ) 321, a case of a shop worker becoming a Seventh Day Adventist, in which the Canadian court identified the factors to be considered in applying the test of “reasonable accommodation”. (As I indicated earlier, this is not a discrimination case.)

Discussion and conclusion

[23]There are two main issues, interference and justification: see the general approach of the House of Lords in Wiliamson and, more specifically, the tentative guidance given by this court in unfair dismissal cases in X v. Y

[2004] IRLR 625

at paragraph 63.

[24]The first issue is whether the circumstances of Mr Copsey’s dismissal fall within the ambit of Article 9. If there has been no material interference with the right guaranteed by Article 9, the Article is not engaged and its impact on the dismissal need not be considered further. The case will be outside the ambit of Article 9(1).

[25]The second main issue is whether, if the circumstances of the dismissal engage Article 9, the dismissal is justified. This involves consideration of Article 9(2) and its application to specific situations. A. Interference and engagement of Article 9

[26]Both the employment tribunal and the Employment Appeal Tribunal concluded that the circumstances of Mr Copsey’s dismissal did not engage Article 9. One reason for this conclusion was the fact found by the employment tribunal that the reason for his dismissal was “some other substantial reason” falling within section 98(1)(b) of the 1996 Act. As the tribunal found in paragraph 38 of the extended reasons, “……the Applicant was dismissed because he refused to accept a change to the 7 day shift pattern. The tribunal finds that his dismissal was not in any way connected with his religious beliefs.”

[27]The tribunal developed this finding in its conclusions by explaining why this was potentially fair as “some other substantial reason.” Devon Clays had a sound business reason for requiring the change in Mr Copsey’s working pattern, the refusal of which led to his dismissal. The required increase in production requirements was an economic necessity for Devon Clays and a good reason for seeking to impose the 7 day regime on all employees. They had also considered the well-being of the other employees working at the plant, the agreement of the vast majority of them to the change and the lack of sympathy and support for Mr Copsey’s position.

[28]Although I see the force of the tribunal’s findings on the reason for dismissal, they are not, in my view, a complete answer to Mr Copsey’s complaint under Article 9.

[29]I agree with Mr Linden, appearing for Devon Clays, that Mr Copsey’s religion and its manifestation in the observance of Sunday as a day of rest were not the reason for his dismissal for the purposes of the 1996 Act. The employment tribunal has found as a fact that it was not the reason. No appeal lies against a finding of fact based on the evidence.

[30]I do not agree, however, that that of itself means that the circumstances of his dismissal fall outside the ambit of Article 9. Contrary to what the tribunal said (see paragraph 38) there was a connection between his dismissal (and the reason for his dismissal) and his religious beliefs. So far as he was concerned the wish to manifest his religious observance of Sunday as a day of rest was the reason for his refusal to agree to the 7 day shift involving working on a Sunday. The real issue is whether that link between his dismissal and his wish to manifest his religious belief is sufficiently material to bring the circumstances of the dismissal within the ambit of Article 9. In the absence of authority I would have thought that it was and that it would then be necessary to consider the justification arguments available to Devon Clays under Article 9(2).

[31]There is, however, a clear line of decisions by the Commission to the effect that Article 9 is not engaged where an employee asserts Article 9 rights against his employer in relation to his hours working.The reason given is that if the employer’s working practices and the employee’s religious convictions are incompatible, the employee is free to resign in order to manifest his religious beliefs.

[32]In Ahmad v. United Kingdom

(1981) 4 EHRR 128

the applicant was a devout Muslim whose religious duty was to offer prayers on Fridays and, if considerations of distance permitted, to attend a mosque for this purpose. He was employed by the local education authority as a full time primary school teacher. He complained that he was forced to resign because he was refused permission to attend a mosque for the purposes of worship during hours of employment. The Commission concluded that there had been no interference with his freedom of religion under

Article 9(1) of the Convention

: see paragraph 23. The view of the Commission was that freedom of religion is not absolute; that “it may as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom”; that that had been recognised in the case of a person with special contractual obligations; that the case was one of a coincidence of teaching obligations and religious duties rather than of religious manifestations in the course of the performance of professional functions; that the local education authority was entitled to rely on its contract with the applicant; and that throughout his employment the applicant remained free to resign if and when he found that his teaching obligations conflicted with his religious duties : see paragraph 15.

[33]The last point featured in two more recent decisions of the Commission. In Konttinen v. Finland (App. No. 249/49/94,3 December 1996) the Commission concluded that the complaint was “manifestly ill-founded.” The applicant was a civil servant and a Seventh-day Adventist. He was dismissed on account of his refusal to continue working after sunset on Fridays. His contract required him to work on Friday evenings after sunset. The ruling was that the applicant had a duty to accept certain obligations to the State employer, including “…..the obligation to observe the rule governing his working hours. He was cautioned by his employer, not having relinquished his post after the irreconcilable conflict arose between his religious convictions and his working hours. In these particular circumstances the Commission finds that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours. This refusal, even if motivated by his religious convictions, cannot as such be considered protected by Article 9 para. 1. Nor has the applicant shown that he was pressured to change his religious views or prevented from manifesting his religion or belief. The Commission would add that, having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion. In sum there is no indication that the applicant’s dismissal interfered with the exercise of his rights under Article 9 para.1”

[34]The final Commission ruling was in Stedman v. United Kingdom (1997) 23 EHHR CD168, which Mr Diamond submitted was incorrectly decided or distinguishable. The applicant was dismissed for her refusal to work for her private sector employer on Sundays. Her original contract had not involved Sunday working. Relying on the earlier decision in Konttinen the Commission said “ The Commission thus considers that, had the applicant been employed by the State and dismissed in similar circumstances, such dismissal would not have amounted to an interference with her rights under Article 9(1). A fortiori the United Kingdom cannot be expected to have legislation that would protect employees against such dismissals by private employers…”

[35]The following comments may be made on this line of decisions-(1) The Commission rulings on non-interference with the Article 9 right are repeated assertions unsupported by the evidence or reasoning that would normally accompany a judicial ruling.

(2) The rulings are difficult to square with the supposed fundamental character of the rights. It hardly seems compatible with the fundamental character of Article 9 that a person can be told that his right has not been interfered with because he is free to move on, for example, to another employer, who will not interfere with his fundamental right, or even to a condition of unemployment in order to manifest the fundamental right.

(3) The argument that the complainant is free to resign and go to work elsewhere was not deployed by the Strasbourg Court against the applicants in Smith & Grady v. United Kingdom

(1999) 29 EHRR 493

. Theircomplaint that their discharge from the armed forces was in breach of Articles 8 and 14 was upheld. The context of the complaint was analogous to employment. (Indeed, there were proceedings in the industrial tribunal under the Sex Discrimination Act 1975 which were stayed and later withdrawn.) No argument was advanced that the complaint fell outside the ambit of Article 8 because the applicants were free to resign from the armed forces and thereby avoid the application to them of the Ministry of Defence policy on sexual orientation, to which they objected and which was ultimately held to violate the Article 8 right to respect for their private life, to be discriminatory contrary to Article 14 and to be unjustified. It was not argued that they had waived their Convention rights by joining the armed forces in the knowledge of the policy of exclusion by the Ministry of Defence. The only point against non-interference taken by the United Kingdom was that the discharge would not have amounted to an interference in the case of those applicants who were aware of the policy and of its application to them at the time when they were recruited. The Court dealt with the case as one in which justification was required for an exclusion policy, which interfered with the Convention rights.

(4) The “free to resign” argument found no favour with the Court of Appeal in the case of R(SB) V. Head Teacher and Governors of Denbigh High School

[2005] EWCA Civ 199

, in which it was held that the Article 9 right of a Muslim pupil applied in respect of a school uniform policy, which was objected to on religious grounds, when she was excluded for non-compliance with the policy without taking proper account of the Article 9 right or of the justification for interfering with it, and without following the statutory procedure for exclusion from school. As appears from paragraph 84, it was no answer to the complaint to say that the applicant was free to enrol in a different school, which had no school uniform policy, or which had a policy allowing the applicant to wear clothes manifesting her religious beliefs. (Leave to appeal has been granted by the House of Lords.)

(5) In Williamson (see above) the House of Lords held that the Article 9 right of the parents to manifest their beliefs about the corporal punishment of children in schools was engaged and was materially interfered with by section 548 of the Education Act 1996, but that the interference in the primary legislation was justified under Article 9(2).

[36]In the absence of the Commission rulings, I would have regarded this as a case of material interference with Mr Copsey’s Article 9 rights. The rights would be engaged and interference with them would require justification under Article 9(2). Under the 1996 Act, however, this court must take the Commission rulings into account, so far as they are relevant in determining a question which has arisen in connection with a Convention right: section 2(1)(c). They are relevant. It is not a case of an isolated ruling. So far as the Commission is concerned it seems to be well established that the qualified Article 9 right of a citizen in an employment relationship to manifest his belief is not engaged when the employer requires an employee to work hours which interfere with the manifestation of his religion or dismisses him for not working or agreeing to work those hours because he wishes to practise religious observances during normal working hours. As Lord Nicholls said in Williamson “38. ……What constitutes interference depends on all the circumstances of the case including the extent to which in the circumstances an individual can reasonably expcct to be at liberty to manifest his beliefs in practice.”

[37]Applying that approach to the specific situation of Mr Copsey in the light of the Commission rulings there was no material or significant interference with his Article 9 right and the decision of the employment tribunal that Article 9 was not engaged was correct in law. There was no material interference in the employment cases about manifesting religious observance in working hours, as the applicant “could effectively manifest his religion in a situation different from that which he had chosen” (Williamson [2003] QB at paragraph 74 per Buxton LJ; or perhaps because “ in a conflict between one’s voluntarily accepted contractual obligations and one’s religion, it is the former which must prevail, even at the expense of one’s employment” at paragraph 193 per Rix LJ, who described it as “this hard doctrine.” As Rix LJ also said in paragraph 198, after citing the decision of the European Court of Human Rights in Kalac v. Turkey 27 EHRR 552, “in considering whether there has been an interference with rights protected under article 9, the European Court of Rights will consider whether, subject to any voluntarily accepted limitation, the complainant remains essentially free to exercise his rights of religion.” At paragraph 202 Rix LJ concluded that the authorities, which he described as “a rather ambivalent collection”, seemed to show that, in judging what is a material interference with the Article 9 right, the European Court of Human Rights “ will have regard to any limitations which the complainant has voluntarily accepted.” At paragraph 262 Arden LJ regarded Kalac and Stedman as deciding that a person who voluntarily accepts a regime which leads to a conflict between his beliefs and the acts which he claims interfere with his beliefs, cannot complain of an interference with his freedom to manifest his beliefs. (See also paragraph 273 for Arden LJ’s reference to the effect of the Commission rulings in Stedman and Konttinen.)

[38]In these circumstances the Commission’s rulings in Ahmad, Konttinen and Stedman apply to the case of an employee seeking to manifest his religious rights during the working hours which his employer is entitled to set. The Commission’s position on Article 9, as I understand it, is that, so far as working hours are concerned, an employer is entitled to keep the workplace secular. In such cases an employee is not in general entitled to complain that there has been a material interference with his Article 9 rights. Employment tribunals should continue to decide similar cases in accordance with those rulings unless and until they are overruled by a decision of the European Court of Human Rights or until the House of Lords hold that they should not be followed in national courts and tribunals.

[39]I am convinced that it is not the function of this court to question the non-interference approach taken in the Commission rulings. Like Rix LJ, the House of Lords or the Strasbourg Court may take a different view of the Commission’s rulings if the matter arises for their consideration. My own view, for what it is worth, is that in some sections of the community this is a controversial question which will not go away and that its resolution requires a political solution following full consultation between government, leaders of employers and the trade unions, and religious leaders. Courts do not have access to the same range of expertise or to the same consultative procedures as legislation . Neither judges nor lawyers have relevant knowledge or experience. The adversarial trial processes in the courts and tribunals are not suited to deciding questions of this kind.

B. Justification

[40]The issue of justification does not arise if the complaint falls outside the ambit of Article 9. It not therefore necessary to express a final view on the ground of justification, although as at present advised, I would have regarded the dismissal as probably justified under Article 9 by the facts found by the tribunal.

[41]The right to manifest one’s religion is qualified by Article 9(2). Interference with it may be justified. Mr Copsey’s dismissal, both as to the reason for it and as to general considerations of reasonableness and fairness, was prescribed by law i.e. the law of unfair dismissal in the 1996 Act. The Article 9 point apart, the dismissal was procedurally and substantively fair. Devon Clays had compelling economic reasons which made it necessary to change the working practices of its workforce a 7 day shift. The alternatives to dismissal were fully explored with Mr Copsey. No sensible alternative to dismissal could be found. The tribunal found that Devon Clays had done everything that they could to accommodate Mr Copsey’s wish not to work on Sundays. In such circumstances the tribunal would be entitled to conclude that the dismissal was justified.

Result

[42]Mr Copsey was dismissed for a potentially fair reason and it was fair and reasonable to dismiss him for that reason. The dismissal did not involve a material interference with his Article 9 rights; alternatively, any material interference with the rights was justified. As there was no error of law in the decision of the tribunal I would dismiss the appeal.

[43]I am grateful to Lord Justice Mummery for setting out the facts and issues in this appeal. I agree with the result which he has proposed, and with the larger part of his reasoning. However, with diffidence, and great respect for one so experienced in this area of the law, I take a different view of the effect of the Commission’s jurisprudence in the context of the underlying English law of unfair dismissal.

Ahmad v. ILEA; Ahmad v. United Kingdom

[44]The earliest in a line of cases in which the Commission has considered article 9 in the context of employment appears to be Ahmad v. United Kingdom

(1981) 4 EHRR 126

. The applicant was a devout Muslim, who had been employed by the Inner London Education Authority (ILEA) since 1968 as a teacher. It was his duty to pray on Fridays and, subject to distance, to attend a mosque to do so. No problem arose until 1974 when he worked at schools which were near enough to a mosque to require his attendance. His absence from the schools, when he visited the local mosque, was longer than the time-table that he was working to permitted. ILEA informed him that if he continued to take time off on Friday afternoons, there would be no alternative but to vary his appointment from full-time to four-and-a-half days a week. The applicant said he preferred to resign. Later he applied to be re-engaged on the basis of a four-and-a-half day week, and ILEA refused to accept him. In July 1974 he complained to an Industrial Tribunal that his resignation constituted unfair dismissal. His complaint was dismissed on the basis that as a matter of contract he was bound to be in school on Friday afternoons and to work full-time. The Tribunal considered whether, despite his contract of employment, ILEA should have accommodated him and adjusted his time-table accordingly and found on balance that ILEA had not been unreasonable. Following that hearing, ILEA did agree to re-engage the applicant, as requested, on a four-and-a-half day week. Appeals to the EAT

[1976] ICR 461

and to the court of appeal

[1978] QB 36

[1977] ICR 490

resulted in the upholding of the Tribunal’s decision (in the Court of Appeal by a majority, Scarman LJ dissenting).

[45]Throughout the English proceedings, the applicant had relied, inter alia, on section 30 of the Education Act 1944, which, broadly speaking, protected teachers in matters of their religious opinions and provided in part that “a teacher shall not receive any less emolument…by reason of…his attending religious worship”. Lord Denning MR said (at 405/418, 494H/495C):

“The school time-table was well known to Mr Ahmad when he applied for the teaching post. It was for the usual teaching hours from Monday to Friday, inclusive. If he wished to have every Friday afternoon off for his prayers, either he ought not to have applied for this post: or he ought to have made it clear at the outset and entered into a 4½ -day engagement only. This was the sensible thing for him to do. Instead he undertook full-time work without making any disclosure that he wanted Friday afternoon off for prayers. I think that section 30 can be applied to the situation perfectly well by reading it as subject to the qualification “if the school time-table so permits”

. So read, it means that he is entitled to attend for religious worship during the working week if it can be arranged consistently with performing his teaching duties under his contract of employment… I have no doubt that all headmasters will try to arrange their time-table so as to accommodate devout Muslims like Mr Ahmad: but I do not think they should be compelled to do so, if it means disrupting the work of the school and the well-being of the pupils.”

[46]Lord Denning next referred to article 9, inferring that it had been drawn into the debate by Scarman LJ. He said that, while the Convention was not (then) part of English law, the courts would do their best to see that their decisions were in conformity with it. Nevertheless, care should be taken to avoid special privileges, with resultant discontent and even resentment, in the name of religious freedom. He concluded (at 41G, 496A):

“I see nothing in the European Convention to give Mr Ahmad any right to manifest his religion on Friday afternoons in derogation of his contract of employment: and certainly not on full pay.”

[47]Orr LJ agreed, but went further than Lord Denning in the following remarks (at 45G/H, 499H/500B):

“Nor, in my judgment, can the answer to the question raised by this appeal be that a Muslim teacher has a right to absent himself for Friday prayers if his doing so will cause only a small inconvenience in the school. This solution would have some attraction because in the present case one of the headmasters concerned, Mr Foley, was able to accommodate Mr Ahmad’s absence and it may be that others might have done so but for the policy adopted by the ILEA. But such a solution, quite apart from the grave practical disadvantage that it would involve detailed investigation in each case as to the degree of difficulty involved, is in my judgment unacceptable in principle since absence without leave in school hours would be a breach of contract even if the inconvenience were slight.”

[48]Scarman LJ took a different view. He observed that society had changed since 1944, as had the legal background in terms of the UK’s international obligations and the acknowledged importance of eliminating discrimination of all kinds. He would therefore have been willing to give to section 30, which was admittedly incorporated into Mr Ahmad’s contract, a broad construction designed to avoid discrimination on the ground of religious observance, so that timetabling arrangements would be required to enable attendance at religious worship consistent with the duty of full-time service: all that Mr Ahmad had needed, on the facts, was a leeway of 45 minutes, which could and should have been accommodated.

[49]Mr Ahmad complained to the Commission, invoking article 9. However, the Commission emphasised that he had already in 1968 of his own free will accepted teaching obligations under his contract with ILEA which proved incompatible with attendance at the mosque on Fridays (at para 9). In successive paragraphs the Commission continued to underline the importance and relevance of his contractual obligations, freely entered into. It observed that he had never informed ILEA at the time of contracting, or for another six years, of the need, or possible need, to absent himself to attend mosque. It said (at para 15) that – “throughout his employment with the ILEA between 1968 and 1975, the applicant remained free to resign if and when he found that his teaching obligations conflicted with his religious duties. It notes that, in 1975, the applicant did in fact resign from his five-day employment and that he subsequently accepted four-and-a-half day employment enabling him to comply with his duties as a Muslim on Fridays.”

[50]Nevertheless, the applicant, concerned at his lower pay and impaired pension rights, submitted that “his case would have been better solved by a re-arrangement of the school time-table permitting his absence for about 45 minutes…” (at para 16). At this point, the Commission broadened the argument considerably. It noted that “UK society was with its increasing Muslim community in a period of transition”: the applicant’s case raised questions of general importance (para 17). The Commission took note of the UK’s evidence and submissions concerning the requirements of the education system as a whole and the task of gradual adaptation to new developments in its society. It asked itself “whether the school authorities, in relying on the applicant’s contract, arbitrarily disregarded his freedom of religion” (at para 19). It founded itself on the facts found in the domestic litigation, and concluded as follows:

“21. The Commission accordingly notes that the applicant, at his first school in Division 5, was allowed to be absent for a short period after the Friday mid-day break in order to attend prayers at the mosque, but that serious difficulties arose as a result of his unauthorised absence, for the same purpose, from the schools at which he was subsequently employed. The Commission further notes the applicant’s various suggestions, as to how the school authorities could and should have solved his problem, and the Government’s answers thereto. 22. Having regard also to the requirements of the education system as described by the Government, the Commission does not find that in 1974/75 the ILEA – or, in their independent capacity, the schools of its Division at which he was employed – in their treatment of the applicant’s case on the basis of his contract did not give due consideration to his freedom of religion. 23. The Commission concludes that there has been no interference with the applicant’s freedom of religion under Article 9(1) of the Convention.”

[51]Finally, the Commission went on briefly to consider and dismiss a submission of discrimination contrary to article 14 taken in conjunction with article 9. It found that he was not treated less favourable than others placed in a comparable situation.

[52]This is, it seems to me, a nuanced judgment, containing a number of strands. One important strand, perhaps ultimately the most important, is the concept of contract, which after all reflects the autonomy of the parties. Mr Ahmad had agreed to work full time without making any special arrangement for Friday afternoons. Such an arrangement could have been made, and ultimately, when the matter became important and the parties had had the opportunity to consider the issues, following the first Tribunal decision, was made. In those circumstances, it is not at all surprising that the Commission had concluded that there was no interference with Mr Ahmad’s freedom of religion under article 9(1). He had wanted to be paid full time for less than full time work. But he was free to be employed on terms which reflected his religious needs.

[53]A second strand, however, considered Mr Ahmad’s submission that a timetabling accommodation could have been found which allowed him an absence of 45 minutes. It is not clear to me whether the submission was that an accommodation could have been crafted which would have met both his need to absent himself for a certain period and his duty to provide full time work; or whether it would merely have solved his absence. I suspect the latter, but in any event this submission was taken very seriously. On the latter hypothesis, it could have been answered by the answer already given to the effect that he was bound by the contract he had made. However, the Commission instead considered the submission in the round, and concluded, by reference to both the larger picture and the timetabling needs of the schools involved, that there had been no failure to “give due consideration to his freedom of religion”. That seems to me to amount to something very close to an acceptance that any interference could be justified under article 9(2) (to which the Commission had referred implicitly or expressly at paragraph 3 – “the object of Article 9 is essentially that of protecting the individual against unjustified interference by the State” – and paragraphs 5 and 11). In the light of the facts found by the Industrial Tribunal at the very start of the litigation, viz that ILEA and the schools had not been unreasonable in their attempts to accommodate him, which the Commission took into account, their conclusion is understandable. It amounts to something very close to Lord Denning’s attitude both as a matter of English law, and as a reflection of what article 9 might require.

[54]Ahmad v. United Kingdom was not cited to or considered by this court in R (Williamson) v. Secretary of State for Education and Employment

[2002] EWCA Civ 1926

[2003] QB 1300

, but the remaining decisions of the Commission reviewed below were.

The Commission decisions considered in Williamson

[55]In Williamson this court considered a line of Commission decisions for the purpose of seeking to identify the ramifications of a doctrine of non-interference (see per Buxton LJ at paras 72/74, per Rix LJ at paras 190/202, per Arden LJ at paras 272/278). In the end this court, having divided on other issues in the case, agreed that there had been no material interference with the rights of the parents and thus no breach of article 9(1). In the House of Lords, their Lordships took a different view of the facts and found that the suggested alternatives to the administration of corporal punishment by teachers in the schools were inadequate to meet the parents’ protected concerns (see, for instance, per Lord Nichollsat

[2005] UKHL 15

[2005] 2 WLR 590

at para 41.

[56]Some of the Commission decisions considered in Williamson concerned employment. They have been cited to us again in this case.

[57]In Konttinen v. Finland (1996) 87 DR 68 the applicant had commenced employment with the state railways in 1986. In 1991 he had joined the Seventh-day Adventist Church and had thus become obliged and wished to observe the Sabbath on Saturdays, commencing at sunset on Friday. Under his contract of employment he worked Monday to Friday, in clerical duties. This presented no problem to him save for about five times in the winter, when sunset came early on a Friday. Having become a Seventh-day Adventist, he started to leave his work early on Fridays, giving his employers warning and offering to make up his missed hours by working longer in the summer, when sunset on Fridays fell later. He was dismissed.

[58]The applicant submitted that his work could easily have been rescheduled (a minority of the Board of Civil Servants which had considered his claim had agreed). The respondent government, however, submitted that the State Railways had not arbitrarily disregarded his freedom of religion since their efforts to transfer him to another post had failed and changes to the shift schedule would have led to inconveniences for both the employer and his fellow-employees. He was cautioned that his continued absences would lead to his dismissal.

[59]The Commission said (at 75/76):

“In these particular circumstances the Commission finds that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours. This refusal, even if motivated by his religious convictions, cannot as such be considered protected by Article 9 para. 1. Nor has the applicant shown that he was pressured to change his religious views or prevented from manifesting his religion or belief. The Commission would add that, having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion. In sum, there is no indication that the applicant’s dismissal interfered with the exercise of his rights under Article 9 para. 1.”

The complaint was therefore found to be manifestly ill-founded.

[60]The Commission in Konttinen did not cite Ahmad v. United Kingdom. It appears, however, that the Commission was prepared to deal with the matter solely on the basis that, having agreed to the terms of his employment, the applicant was not in a position to alter them unilaterally. It seems, therefore, that the Commission did not feel it necessary to adjudicate further, as it had done in Ahmad, concerning the parties’ competing submissions regarding attempts to find an accommodation. In Williamson I described this as “hard doctrine” (at para 193), and so it would be if the applicant’s submissions on the subject of ease of accommodation were in fact to be preferred. I wonder how many employers in today’s multi-cultural society could operate, or would even wish to try to operate, the Commission’s doctrine. As for employees, I suppose it is true that the “ultimate” guarantee of their right to freedom of religion is self-abnegation. It is, however, to forestall the need for such ultimates that a concern for human rights exists. I am unable to understand how it can be said that the applicant was not prevented from manifesting his religion by asking him to choose between his employment and his observance of the sabbath (other than of course in the sense that he had freely bound himself by contract to this extent not to do so; but that is a separate point).

[61]The other Commission decision concerning employment is Stedman v. United Kingdom (1997) 23 EHRR CD 168. There the applicant was a Christian who did not wish to work on Sundays. The facts are not well reported, but it seems that at some stage after she had been employed (for the decision refers to the fact that she had been employed for less than two years and thus had no right to claim unfair dismissal under UK legislation) she was asked to agree to work on Sundays and had refused, and had therefore been dismissed. As Lord Justice Mummery comments (at para 34 above), her original contract had not involved Sunday working. In its brief reasoning, the Commission merely referred to and applied its earlier reasoning and decision in Konttinen. It does not appear to have considered that its decision in Stedman involved an unreasoned extension of what I have taken to be the rationale of Konttinen, namely that an employee cannot complain of interference in his rights of religious freedom if he binds himself by his own contract in a way inconsistent with those rights. However, for the purpose of such a rationale, the facts of Stedman are critically different: she had not agreed, when first employed, to Sunday working; it was her employer who was now requiring her, against her consent, to work on Sundays.

[62]I refer to Lord Justice Mummery’s comments in para 35 above about this line of Commission decisions, and in general I agree with all that he there says. However, I would myself qualify those comments to this extent: that the case of Ahmad seems to me, if I may say so with respect, to lie, as I understand it, outside the greater part of those strictures. It is rather the reasoning of Konttinen, formally and without motivation and, as it seems to me, incomprehensibly extended to the facts of Stedman, which gives me particular concern. Of course, on the facts relevant to the current appeal before this court, it is Stedman which is the relevant Commission authority for the employer’s submission, in support of the conclusion of the EAT, that article 9 is not engaged by Mr Copsey’s complaint.

[63]I therefore have no difficulty with the general thesis that contracts freely entered into may limit an applicant’s room for complaint about interference with his rights. As I ventured to say in Williamson, after reviewing the line of decisions there under consideration, (at para 202):

“This then is a rather ambivalent collection of authorities, but even so there is a consistent thread running through them to the effect that it is not enough to show that a right protected under article 9(1) is theoretically in play unless it can also be shown that that right has been interfered with in a material way. In judging what is material the European Court of Human Rights will apparently have regard to any limitations which the complainant has voluntarily accepted. And it will not be bound to take the complainant’s protestations of interference at face value if on an objective assessment they do not amount to anything material.”

[64]And as Lord Nicholls said in Williamson at para 38:

“What constitutes interference depends on all the circumstances of the case, including the extent to which in the circumstances an individual can reasonably expect to be at liberty to manifest his beliefs in practice…In choosing to pursue a military career Kalaç [see Kalac v. Turkey (1997) 27 EHRR 552] accepted of his own accord a system of military discipline which by its nature implied the possibility of limitations incapable of being placed on civilians.”

[65]Where, however, in these circumstances I am reluctant to follow Lord Justice Mummery’s analysis is in thinking that the Commission’s decisions on article 9 in the employment context – Ahmad, Konttinen and Stedman – represent a body of consistent decisions which require the conclusion that, even where, as here, it is the employer who seeks a change to the employee’s contractual working hours, the employee cannot raise a case, dependant on the facts, of an interference in his rights protected by article 9, which may therefore have to be justified. It seems to me that Ahmad in no way leads to that conclusion, since in that case it was the employee who was demanding to be entitled to be paid full-time when he began working less than full-time, and in any event the Commission showed considerable interest in the question of the possibility of a reasonable accommodation of the parties’ interests and in issues of justification. It also seems to me that Konttinen does not lead to that conclusion, despite its new lack of interest in the possibilities of accommodation and thus its potentially hard doctrine, since there again it was the employee who sought to change his existing contract. Thus it is only Stedman which, if its facts are properly understood, without attempt at explanation applies a doctrine of voluntary acceptance of limitations of rights to a case where it was the employer, and not the employee, who was seeking to limit the applicant’s rights by changing their agreement.

[66]In my judgment, therefore, this is not a situation which requires the English courts to apply Stedman in its own jurisprudence. Although section 2(1) of the Human Rights Act 1998 requires our courts to take account of any relevant Strasbourg case law, it is only where there is a “clear and constant jurisprudence” of the Strasbourg court that our courts should feel under an obligation to follow it: R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions

[2001] UKHL 23

[2003] 2 AC 295

at para 26, R (Ullah) v. Special Adjudicator

[2004] UKHL 26

[2004] 2 AC 323

at para 20.

Further discussion: and the concept of unfair dismissal

[67]It is common ground that there is no element of discrimination in Mr Copsey’s case. All his fellow employees were required to work on Sundays. In Ahmad v. United Kingdom the Commission similarly found that there was no element of discrimination involved. That a different analysis of similar situations is, nevertheless, possible is illustrated by the Canadian authorities cited by Mr Diamond, the effect of which, on essentially similar facts albeit different constitutional texts, required the employers to discharge a burden of proving, on a strict test (to the point of undue hardship), its attempts to accommodate the complainant. In Re Ontario Human Rights Commission v. Simpsons-Sears Ltd

(1985) 23 DLR 321

the Supreme Court of Canada held that there was prima facie discrimination (in a Konttinen situation) where an employee, after being employed for some time on the basis of having to work Friday evening and Saturday, became a Seventh-day Adventist: she was discharged as a full-time employee and rehired as a part-time employee, but her claim nevertheless succeeded on the basis that her employer had failed to discharge the burden of showing that reasonable attempts had been made to accommodate her. And in Alberta Human Rights Commission v. Central Alberta Dairy Pool; Canadian Human Rights Commission et al., Interveners

(1990) 72 DLR 417

the Supreme Court of Canada held that an employee who requested Easter Monday off work but was refused on the ground that Monday work was necessary for all employees on production grounds, had been discriminated against in the absence of a successful defence based on a bona fide occupational requirement. Since these decisions are based on a concept of discrimination, they are not directly applicable to Mr Copsey’s case.

[68]Nevertheless, the concept of reasonable accommodation is not foreign to either Convention jurisprudence or English law: see Ahmad v. ILEA and Ahmad v. United Kingdom. And, irrespective of article 9, the concept of unfairness in the law of unfair dismissal is inherent in English employment law, now covered by the Employment Rights Act 1996.

[69]I would therefore prefer to say, limiting myself to the facts of this case, that, where an employer seeks to change the working hours and terms of his contract of employment with his employee in such a way as to interfere materially with the employee’s right to manifest his religion, then

article 9(1) of the Convention

is potentially engaged. One solution is to find a reasonable accommodation with the employee. If this is found, then there will in the event be no material interference. If a reasonable solution is offered to the employee, but not accepted by him, then I think it remains possible to say that there is no material interference; alternatively, one can speak of justification under article 9(2). What is important to realise is that there is, as always (save in the case of absolute rights), a balance to be struck between the rights of the individual and the rights of all members of a democratic society. The latter rights will include the rights of the employer, who has a business or other form of undertaking to run, the rights of fellow-employees, and the rights of the public in general, mediated through parliament, who have an interest in fair but efficient employment laws. In the case of a private employee like Mr Copsey, the state’s interest, and obligation, is in ensuring that employment laws allow room for an individual’s Convention protected rights to be capable of being vindicated.

[70]On the Employment Tribunal’s and the EAT’s legal analysis, article 9 lies outside the concept of unfair dismissal. In my respectful judgment, that is a mistaken and unnecessary conclusion at which to arrive. The concept of unfair dismissal is well able to mediate the interests involved.

[71]It seems to me that it is possible and necessary to contemplate that an employer who seeks to change an employee’s working hours so as to prevent that employee from practising his sincere adherence to the requirements of his religion in the way of Sabbath observance may be acting unfairly if he makes no attempt to accommodate his employee’s needs. I cannot conceive that a decent employer would not attempt to do so. To say in such a situation that the employee’s religious needs simply lie outside the scope of what the law requires of the fair employer ought not to be acceptable. I do not think that this places any burden on a decent employer that he does not already observe in practice, as is illustrated on the particular facts of this case. Such a requirement would, I venture to think, be easily fitted into the general law of unfair dismissal. An employer who had sought to find a reasonable accommodation for his employee would have nothing to fear. Provided his solution was one which a reasonable employer could require, in that it lay within the range of reasonable responses to the problem, it would not be for an Employment Tribunal to second-guess the employer.

[72]It seems to me that such a rule is consonant with what Lord Denning and the Commission were saying in Ahmad, with the English law of unfair dismissal, and with what I take to be good employment practice. In any event, it seems to me that if respect for the right to manifest one’s religion is to have meaning in a democratic society, it is not possible to say that an employer who, in the given situation, would simply ignore any need to seek a reasonable accommodation would be acting fairly.

[73]In the circumstances it seems to me that it is in one sense irrelevant whether

article 9 of the Convention

covers the present situation or not. As Lord Bingham made clear in Ullah at para 20, it is open to member states to provide for rights more generous than those granted by the Convention, provided that they do not seek to do so by reference to its provisions. I would be content, therefore, if necessary, to say that the English law of unfair dismissal by itself covers the situation under discussion. I would, however, prefer to view

article 9 of the Convention

in the same light.

Decision

[74]Since, however, the Tribunal went on to find, on the facts, that Mr Copsey’s employers had acted reasonably, and had, indeed, done everything they could, his claim for unfair dismissal fails in any event, whether viewed under the English law of unfair dismissal without reference to article 9, or whether in addition viewed by reference to article 9 as I would understand it. I have asked myself whether the Tribunal’s decision on the facts should be viewed circumspectly, on the basis that their underlying notion was that they had no jurisdiction to consider the reasonable accommodation point. However, I do not think that would be the right conclusion. They set out the underlying facts in detail, and addressed them on the alternative basis that they did have jurisdiction to consider Mr Copsey’s article 9 rights and to form a view as to whether there had been a reasonable accommodation or not. They concluded that Mr Copsey had not made out a case that his employers had failed to make reasonable accommodation for his religious beliefs. It seems to me that it would not be right to think that the Tribunal had failed, properly and in good faith, to address the essential factual issue in the case. The facts, of course, are for them.

[75]It follows that I would agree that this appeal fails and must be dismissed. On the point of law, however, while I am diffident in finding myself to some extent in disagreement with Lord Justice Mummery, I am nevertheless pleased to be able to think that English law, and

article 9 of the Convention

, do not have to show complete disregard for the Fourth Commandment, which must, I suppose, be one of the earliest and closest to universally recognisable texts of employment law in favour of the employee of which we have knowledge.

[76]I gratefully adopt Mummery LJ’s summary, in paragraphs [10] to [16] above, of the basic facts relating to Mr. Copsey’s employment with, and dismissal by, Devon Clays. The question for us is whether the Employment Appeal Tribunal (whose reasoning is explained in paragraphs [19] to [21] above) was right to decide that the Employment Tribunal (whose reasoning is set out in paragraphs [17] and [18] above) was entitled to come to the conclusion that it did, namely that Mr. Copsey had not been unfairly dismissed.

[77]Mr. Copsey’s case, as advanced by Mr. Diamond below and in this court, was based substantially on

Article 9 of the Convention

, which is quoted in paragraph [6] of Mummery LJ’s judgment. His case as so put effectively assumes that he would otherwise have no domestic remedy. I prefer to start with the domestic law contained in the relevant statutory provisions relating to unfair dismissal, which are in the Employment Rights Act 1996 (“the 1996 Act”).

[78]Section 94(1) gives an employee “the right not to be unfairly dismissed”. Section 98(1) provides that it is for the employer to establish(a) the reason for dismissal, and

(b) that the reason either falls within subsection (2), or that it is “some other substantial reason of a kind such as to justify the dismissal of [the] employee”. Subsection (2) lists four reasons, which are, in summary, “capability or qualifications of the employee”, “conduct of the employee”, redundancy of the employee, and the employment contravening the law.

[79]Section 98(4) provides that, where the employer satisfies subsection (1):

“[T]he determination of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances … the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.”

[80]Subsection (6) of section 98 provides that subsection (4) is “subject to” the provisions, inter alia, of sections 99 to 107 of the 1996 Act. Of some interest in the present context is section 101, which, in general terms, provides that a shop worker or betting worker is unfairly dismissed if the only or principal reason for his dismissal is that he refuses to work “on Sunday or on a particular Sunday”.

[81]In my judgment, the proper analysis in this case is as follows. The dismissal of an employee on the ground that he refuses to work on a Sunday on religious grounds is potentially unfair within the meaning of the 1996 Act. However, save where section 101 applies, the question which has to be determined in such a case, is whether the dismissal is actually unfair under that Act. That question must be answered by reference to the principles set out in section 98(1) and the standards set out in section 98(4).

[82]In the absence of authority to the contrary, it appears to me that, by dismissing an employee because he is not prepared to work on a certain day of the week on the grounds of genuinely held religious belief, an employer could, depending on the facts, be guilty of “unfairly” dismissing him, as a matter of ordinary English language. The concept of unfairness is, in principle, at least as a matter of ordinary language, very wide, just as it is very much dependant on the facts of the particular case. However, the essential point for present purposes is that, at least as a matter of ordinary language, the concept is apt to cover the dismissal of an employee on such grounds, provided, of course, the circumstances are such that the employer can fairly be said to be “unfair”.

[83]I believe that this conclusion is reinforced by the absence of any provision in the 1996 Act which appears expressly to cut down the wide ambit of the word “unfair”, at least so far as relevant to this issue. Indeed, the terms of section 98(1)(b) and 98(4) suggest that the concept of what is fair or unfair for the purposes of the 1996 Act is not intended to be artificially constrained. Further, turning to section 98(2), an employee’s “capability” in a particular job may be detrimentally affected by his preparedness to work on a Sunday. So too it may be arguably said to impinge on his “conduct”.

[84]I also believe that the conclusion is reinforced by the inclusion in section 101 of the specific cases of shop workers and betting workers who refuse to work on Sundays. The fact that the refusal may not be on religious grounds does not alter the point that the 1996 Act specifically recognises that dismissal of an employee on the ground of his refusal to work on a Sunday may amount to unfairness within the 1996 Act. If such a dismissal falls within section 101, then it will always be unfair. If it does not, then the natural implication is that it could be unfair, depending on the circumstances.

[85]As I see it, therefore, the central question for present purposes is whether, in determining Mr. Copsey’s employment, because he was not prepared to work on Sundays, Devon Clays “unfairly dismissed” him, and that question must be answered by reference to the provisions of the 1996 Act.

[86]Whether a particular dismissal on such grounds is unfair in a given case must, of course, depend on the precise facts of that case. It would be surprising if it were otherwise (subject to special cases such as those canvassed in section 101). The point is made quite clear under the 1996 Act, in the light of the terms of section 98(4), with its references to “the circumstances”, reasonableness, “equity” and “the … merits”.

[87]At one extreme, might be a case where an employee is engaged specifically on the basis that he will work on a Sunday, and he subsequently comes to believe in a religion that prevents him working on a Sunday, and where the employer has always reasonably required an employee with his particular skills to work on a Sunday, and where there are no other appropriately skilled employees who could work in his place on a Sunday. It might be unfair for the employer to dismiss the employee, even in such a case, without taking any steps to see if the employee’s newly acquired religious beliefs could be accommodated. However, I would have thought that it would require pretty exceptional additional facts before the employer could be held to have unfairly dismissed the employee in such a case.

[88]At the other extreme, might be a case where an employee starts his employment on the specific basis that he will not have to work on a Sunday because of his religious beliefs, where the employer subsequently requires him to work on a Sunday, and where the employee is able to identify another worker, with his particular skills, who would be prepared to work in his place on a Sunday. In such a case, it would be hard, at least in my view, to see, at least in the absence of further facts, how the employer could challenge his dismissal of the employee as unfair if it was on the basis that he would not work on a Sunday, even if the terms of his contract permitted a variation on the part of the employer so that there was no breach of contract in his requiring the employee to work on a Sunday.

[89]In a case where it would, as a matter of ordinary language, be unfair for an employer to dismiss an employee because he would not work on a Sunday for religious reasons, I find it hard to see why, as a matter of principle, law or practice, the employee should not be able to complain of his dismissal as being unfair under the 1996 Act. Having said that, it is important to emphasise that the 1996 Act should not be invoked in such a case so as to impose unreasonable stringency or impractical constraint on the way in which an employer runs his business.

[90]I am not aware of any authority or principle which calls this conclusion, rather generalised it is, into question. Given that it appears to me to involve striking a balance (which is, really by definition, what fairness normally involves) between the competing interests of the parties, namely the employer’s requirement to run his business properly, and the employee’s requirement to observe his religion, it appears to me to accord not merely with the notion of fairness, but also with the values of enlightened capitalism and liberal democracy.

[91]Having reached that conclusion of principle, I can see no reason, either on the authorities or in principle, how or why

Article 9 of the Convention

takes matters any further. In the light of the decisions of the European Commission, which have been fully analysed in the judgments of Mummery and Rix LJJ, it may well be that Article 9 does not even get Mr. Copsey as far as his reliance on the effect of domestic law, at least as I interpret it. Like Mummery and Rix LJJ, I find the decisions of the European Commission on this topic arguably surprising and the reasoning hard to follow. However, I do not believe that it is necessary to decide whether or not we should follow them. At best from Mr. Copsey’s point of view, it appears to me that, on the assumption that we can and should depart from the views of the Commission, Article 9 cannot take matters any further in Mr. Copsey’s favour than, at least on my view, the 1996 Act gets him.

[92]In this connection, Mr. Diamond suggests that dismissal on the grounds of the employee’s refusal to work on his religious day of rest, should be as much a breach of Article 9 as dismissal on the grounds of his sexual preference would be a breach of Article 8. In my view, that proposition is self-evidently flawed. I find it very difficult to conceive of any job, or at least any respectable job, where satisfactory performance would be significantly, or indeed at all, affected by the sexual preference of the employee. On the other hand, it is easy to see that an employee’s religious beliefs might prevent him working in a particular way or (as in this case) at particular times. Accordingly, the religious beliefs of an employee could self-evidently, as the present case shows, cause him to perform his job less satisfactorily from the point of view of his employer.

[93]Even if the Commission’s reasoning in the decisions cited to us is incorrect (as it may well turn out to be), an employee’s Article 9 rights would have to be balanced against the employer’s rights, in a way which would not be necessary or appropriate where the employee’s Article 8 rights could be invoked. Such a balancing exercise would seem to be very similar to that which, in my opinion, would be involved under the 1996 Act, and I have discussed above. In my judgment, therefore, even if we were to depart from the reasoning of the Commission in its decisions which have been cited to us, then the impact of Article 9 on the implementation of the relevant provisions of the 1996 Act, at least in a case such as this, would not take matters any further: the provisions of the 1996 Act would have the same effect, in my view, with or without any impact from Article 9.

[94]That, then, brings me to the question whether, on the facts of this case, and bearing in mind the provisions of the 1996 Act, and in particular, subsections (1), (2) and (4) of section 98, Mr Copsey was unfairly dismissed by Devon Clays. The short answer to that question is that the issue was carefully and properly addressed by the Employment Tribunal, and they concluded that Devon Clays had not acted unfairly or unreasonably in dismissing Mr Copsey. There appears to have been no error of law or logic on the part of the Tribunal, who appear to have taken all relevant matters into consideration. In my judgment, as Rix LJ has said, the Employment Tribunal reached a conclusion which, to put it at its lowest, was one that they could properly have reached.

[95]In summary, the essential findings of the Employment Tribunal were as follows. Devon Clays were reasonable in initially requiring Mr Copsey to work on some (but by no means all) Sundays, owing to changes in demands for their products. They then did their best to accommodate his requirement not to work on any Sundays. This was initially successful, but it then led to difficulties, not least because of dissatisfaction among other employees. Devon Clays then offered Mr Copsey an arrangement which would have minimised his Sunday working, and, subsequently, a new (admittedly less well-paid) post which would have avoided any Sunday working.

[96]The view of the Tribunal was that Devon Clays had done everything they reasonably could have done or could have been expected to do, in the particular circumstances of the case, to accommodate Mr Copsey’s desire not to work on Sundays. I do not think that it is inaccurate to say that, if the Employment Tribunal thought anyone had acted unreasonably in this case, it was Mr Copsey. These were, as I have said, clear findings which were open to the Tribunal to make, and which justified their conclusion.

[97]Accordingly, in agreement with the Employment Appeal Tribunal on this aspect, I consider that Mr Copsey has no valid ground for challenging the conclusion that he was fairly dismissed, and I too would reject his appeal.

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