Copsey v WWB Devon Clays Ltd

An employee’s refusal on sincere religious grounds to work on a particular day may make a resulting dismissal unfair under the Employment Rights Act 1996. Except where a statutory automatic-unfairness provision applies, fairness remains a fact-sensitive question under section 98.

A reasonable employer should consider whether the employee’s religious observance can be accommodated. The employer need not accept an arrangement that imposes unreasonable or impractical constraints on its business or other employees. A dismissal may be fair where genuine operational needs require changed hours, reasonable alternatives have been explored, and the employer’s response falls within the range of reasonable responses.

The appellant, a Christian employee, regarded Sunday as a day of rest. His private-sector employer introduced a seven-day shift system to meet increased production requirements. The employee refused any arrangement carrying the possibility of regular Sunday work and was dismissed after alternative employment and other arrangements had been explored.

The employment tribunal found that the reason for dismissal was his refusal to accept changed contractual hours. It held that this was some other substantial reason and that dismissal fell within the range of reasonable responses. The Employment Appeal Tribunal, Rimer J presiding, dismissed his appeal in UKEAT/0438/03/SM.

The Court of Appeal considered whether the dismissal was unfair under the Employment Rights Act 1996 and what effect article 9 of the European Convention on Human Rights had upon that claim.

1. Appeal dismissed. The employment tribunal had been entitled to find that the employer acted reasonably and had done everything reasonably expected of it to accommodate the employee’s wish not to work on Sundays. Its findings disclosed no error of law and justified the conclusion that the dismissal was fair.

2. Rix and Neuberger LJJ held that the domestic law of unfair dismissal was capable of protecting sincere religious observance. A dismissal because an employee refuses on religious grounds to work on a particular day is potentially unfair. Outside the automatic protection for shop and betting workers in section 101 of the Employment Rights Act 1996, actual fairness depends upon section 98(1) and (4), including the circumstances, reasonableness, equity and the substantial merits.

3. A fair employer should consider reasonable accommodation. The inquiry remains subject to the range of reasonable responses. It must balance the employee’s religious needs against legitimate business requirements, the position of fellow employees and practical constraints. On the findings, compelling production requirements supported a seven-day system; the employer had consulted, considered alternative posts and attempted accommodations; and no sensible alternative to dismissal remained.

4. Mummery LJ held that the Commission decisions in Ahmad, Konttinen and Stedman required the conclusion that there had been no material interference with article 9 rights in this employment context. Tribunals should follow that line unless it is displaced by the European Court of Human Rights or the House of Lords. He considered alternatively that any interference was justified under article 9(2).

5. Rix LJ disagreed that the Commission authorities formed clear and constant jurisprudence governing an employer-imposed contractual change. He considered article 9 potentially engaged where such a change materially interfered with religious manifestation. Reasonable accommodation could prevent interference or demonstrate justification. The claim nevertheless failed because the tribunal had found that reasonable accommodation was fully considered.

6. Neuberger LJ found it unnecessary to decide whether article 9 was engaged. The Employment Rights Act 1996 already required substantially the same balancing exercise, and article 9 could not improve the employee’s position on the facts.

1. Court of Appeal (Civil Division): Dismissed the employee’s appeal in [2005] EWCA Civ 932 and upheld the conclusion that the dismissal was fair.

2. Employment Appeal Tribunal: Rimer J presiding, dismissed the appeal from the employment tribunal by an order dated 13 February 2004, UKEAT/0438/03/SM.

3. Employment tribunal: By extended reasons promulgated on 15 April 2003, rejected the unfair dismissal claim. It found some other substantial reason for dismissal and held that dismissal fell within the range of reasonable responses.