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Issue 103 (September 2005)

Contents

In the news
Equal pay adds up
A warning shot
An employee or a worker?
Not so sacred Sunday
Part time wings
One way or another
Re-run for the CAC

Not so sacred Sunday

There are a number of (limited) options for employees when their employer announces a change to their terms and conditions. One is to stay in the job and protest, another is to resign and complain of unfair dismissal.

In Copsey v WWB Devon Clays Ltd, the Court of Appeal has said that Mr Copsey (a Christian) was not unfairly dismissed for refusing to accept a shift change that involved working on a Sunday.

What were the basic facts?

After winning significant new business in late 1999, Devon Clays decided to extend its operating hours, and introduced a system of annualised hours with a rotating shift pattern, including some Sunday working in April 2000.

Four operatives, including Mr Copsey, refused to work on Sunday, and the company agreed that they could work on a six-day basis. However, after securing more new business in March 2002, Devon Clays said that everyone had to work seven days a week or be made redundant.

Mr Copsey again refused, and was offered work in a different plant operating a five-day rotating shift. He refused this and the company then offered him other vacancies, which he also refused. He was dismissed with effect from 31 July 2002, without a redundancy payment. Mr Copsey said he had been unfairly dismissed because, as a Christian, he could not do a job that might involve working on a Sunday. He said this constituted "interference with his right to manifest religious belief" under article 9 of the European Convention on Human Rights (ECHR).

What did the tribunals decide?

The employment tribunal decided that Mr Copsey was dismissed, not because of his religious beliefs, but because he would not agree to a contractual variation in his working hours. The reason for the change was a sound business reason which the company had explained during its consultation with both the workforce and the unions.
It said that Devon Clays had acted reasonably and done everything it could to accommodate Mr Copsey's beliefs. His dismissal was therefore fair. The employment appeal tribunal (EAT) agreed, and said that the ECHR did not apply because Devon Clays was not a public authority.

Mr Copsey went to the Court of Appeal, arguing (among other things) that although Devon Clays was a private employer, the tribunal was a public authority, which should have applied article nine, as well as section three of the Human Rights Act 1998.

What did the Court of Appeal decide?

The Court of Appeal agreed that Mr Copsey had not been unfairly dismissed, although the three judges reached their decisions in different ways. One judge said that a number of European decisions in the European Court of Human Rights (Ahmad v UK; Stedman v UK) made clear that, if the employer's working practices and the employee's religious convictions are incompatible, the employee has the option of resigning in order to manifest his or her religious beliefs.

Another felt, however, that what was fatal to Mr Copsey's case was the argument of "reasonable accommodation." He concluded that if an employer wants to change a contract term, then an employee may be able to rely on article 9. However, because the employer in this case acted reasonably and did everything it could, Mr Copsey's claim for unfair dismissal failed.

The third judge came to the same conclusion, arguing that domestic law was capable of resolving the issue. He said that what was important was "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".