Copsey v WWB Devon Clays Ltd

The Court of Appeal dismissed the employee's appeal against the Employment Appeal Tribunal and upheld the Employment Tribunal's finding that the dismissal was for refusing a contractual variation to a 7-day shift pattern rather than for "being a Christian". The court considered whether Article 9 ECHR (freedom of religion) was engaged and concluded, applying the line of European Commission decisions (notably Ahmad, Konttinen and Stedman) and the obligation in section 2(1)(c) of the Human Rights Act 1998 to take relevant Strasbourg material into account, that there was no material interference with Article 9 in the context of an employee required to accept particular working hours; alternatively any interference would have been justified under Article 9(2). The court also applied the statutory unfair dismissal test in section 98 of the Employment Rights Act 1996 and found the employer's dismissal fell within the band of reasonable responses.

Background and parties: Stephen Copsey, a Christian employee, challenged his dismissal by WWB Devon Clays Ltd after refusing to accept a contractual change to a rotating 7-day, 12-hour shift pattern that could involve Sunday working. He asserted the refusal was a manifestation of his religious belief and relied on Article 9 ECHR in the context of an unfair dismissal claim brought under the Employment Rights Act 1996.

Procedural posture: The Employment Tribunal found the reason for dismissal was refusal to accept the 7-day shift and that the dismissal was for "some other substantial reason" under section 98(1)(b) of the 1996 Act and therefore fair. The Employment Appeal Tribunal (Rimer J) dismissed Copsey's appeal. Permission to appeal to the Court of Appeal was subsequently granted.

Issues framed:

• Whether the circumstances of the dismissal engaged Article 9 ECHR (interference with freedom to manifest religion); and
• If Article 9 was engaged, whether any interference was justified under Article 9(2), and how Article 9 interacts with the statutory unfair dismissal test in section 98 of the Employment Rights Act 1996.

Court's reasoning: The court undertook a two-stage approach: first asking whether Article 9 was engaged and then, if so, whether any interference was justified. Lord Justice Mummery concluded that, absent the European Commission decisions, the dismissal would likely engage Article 9; however section 2(1)(c) of the Human Rights Act required taking Commission jurisprudence into account. The Commission's decisions in Ahmad, Konttinen and Stedman were held to support a non-interference approach where an employee's contractual working hours conflict with religious observance (the employee may in effect be free to resign), and therefore Article 9 was not materially engaged on these facts. Alternatively, the court held that any interference would be justified because the dismissal was prescribed by law (the unfair dismissal regime) and was a proportionate response to the employer's economic necessity and the reasonable steps taken to accommodate the employee. Lord Justice Rix and Lord Justice Neuberger agreed with the outcome. Rix LJ emphasised that, on principle, English unfair dismissal law can and should consider reasonable accommodation but accepted that on the facts the employer had reasonably sought accommodation and the dismissal was fair.

Relief sought and disposition: Copsey sought to impugn his dismissal as unfair on Article 9 grounds; the Court of Appeal dismissed the appeal, upholding the tribunals' factual findings and conclusion that dismissal was fair.

The appeal was dismissed. The Court of Appeal held that on the facts the Employment Tribunal was entitled to find that the dismissal was for refusal to accept a 7-day shift (a "some other substantial reason" under section 98(1)(b) of the Employment Rights Act 1996) and not for being a Christian; applying Strasbourg Commission jurisprudence (Ahmad, Konttinen, Stedman) the circumstances did not amount to a material interference with Article 9, and alternatively any interference would have been justified. The dismissal therefore fell within the band of reasonable responses and was fair.

Appeal from the Employment Appeal Tribunal (Rimer J) which dismissed the appellant's challenge to the Employment Tribunal's decision (extended reasons promulgated 15 April 2003). Permission to appeal to the Court of Appeal was granted on 28 April 2004. (EAT reference: UKEAT/0438/03/SM.)