Monday 25 July 2005

...Six days shalt thou labour, and do all thy work

In a fascinating case, the Court of Appeal has considered (in three separate reasoned judgments) the issue of whether and when the dismissal of an employee who refuses to work on the Sabbath is unfair.

The case concerned the impact of article 9 of the ECHR (freedom to manifest religion) on UK unfair dismissal law. The unfair dismissal claim was brought by a Christian employee who refused to accept shift-changes requiring Sunday working, and was dismissed as a result.

Mummery LJ, following a line of European Commission authorities ending with Stedman v UK, held that article 9 is not engaged because an employee is always free to resign from a job and not work on Sundays. He made it fairly clear he disagreed with those authorities, but considered himself bound by them.

Rix LJ, in a thoughtful and compelling judgment, held that the line of cases did not hold that Article 9 was not invoked if an employee had the option to resign. However, on the facts, the employer had tried to accommodate the employee when changing his hours to include Sunday working, and although Article 9 was engaged, it was not breached

. Neuberger LJ, dealing principally with English (rather than Convention) law, held that it is always open to a tribunal to find a dismissal unfair if an employer fails to strike a reasonable balance between the needs of the business and the employee's religious beliefs. He considered that Article 9 of the ECHR added little to the existing balancing act necessary for unfair dismissal decisions.

This decision is important as, despite the result, it makes it very clear that employers must try to minimise the impact of changes to working hours on employees who hold strong religious beliefs (eg by offering alternative jobs)

Copsey v WWB Devon Clays Ltd

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