Scottish Human Rights Law Group

The Court of Appeal’s decision in Copsey –v- WWB Devon Clays Ltd [2005] EWCA Civ 932 deals with the application of Article 9(1) of the European Convention on Human Rights in the context of the question of whether an employer was justified in dismissing a devout Christian who refused to accept a variation in his working hours which would have meant he would have been required to regularly work Sundays. Article 9(1) guarantees the right to freedom of thought, conscience and religion. It is qualified by Article 9(2) which provides that the right can only be interfered with in certain limited circumstances.

Mr Copsey’s original contract required him to work Mondays to Fridays, with overtime on Saturdays and less frequently on Sundays. Between 1999 and 2002 production at Devon Clays increased substantially and as a result, the company took the view that 7-day shift patterns would have to be introduced for all employees. In early 2002 Mr Copsey was asked to consider a change to his working hours which would mean he would be required to work a 7-day shift pattern.

Mr Copsey indicated at a meeting that he accepted that a valid business case existed for the introduction of the new shift pattern. He was not however prepared to move to the new shift pattern, as it would involve the possibility of Sunday work being required. He indicated that the opposition to his working Sundays was on religious grounds. After trying without success to find a compromise solution (including offering Mr Copsey other positions in the company), the company took the decision to dismiss him in July 2002. Mr Copsey applied to the Employment Tribunal.

The Tribunal held that Mr Copsey was dismissed because he refused to accept a change in his shift patterns. That reason was “some other substantial reason” of a kind such as to justify the dismissal, in terms of the Employment Rights Act 1996. The Employers had demonstrated a sound business case for the requirement to move to the new shift pattern. They had taken account of the interest of the employees, consulted them and considered their well-being. They had also discharged their obligation to consider any alternative positions that could have been offered to Mr Copsey. He had declined to accept any of the proposed alternatives. The dismissal was within the “band of reasonable responses” open to the Employer and was a fair one within the meaning of the Act.

On appeal, the Employment Appeal Tribunal agreed with this assessment. They held that Mr Copsey was not dismissed because of his beliefs or because he wanted to manifest them by observing Sunday as day of rest. In any event, even if Article 9 was engaged on the facts of the case, there would have been no breach of that Article, since the decision of the European Commission for Human Rights in Stedman was to the effect that if there was an incompatibility with the expression of religious beliefs and the requirements of a job, and employee always has a choice and is free to resign – hence Article 9(1) was not breached in those circumstances.

Mr Copsey appealed to the Court of Appeal. The Court upheld the EAT’s reasoning that the dismissal was not unfair, and dismissed Mr Copsey’s application. The Court’s analysis of the problem as delivered in the three judgements is worthy of note

Neither Lord Justice Mummery nor Lord Justice Neuberger considered that Article 9(1) was engaged although Mummery LJ expressed the opinion that even if consideration required to be given to the point when assessing the fairness of the dismissal, standing the line of European authority ending in Stedman, Article 9(1) was not engaged, and even it was, any interference would have been justified in the circumstances.

Lord Justice Rix took a different approach. He considered that Article 9(1) was potential engaged in circumstances where a proposed change to an employee’s working conditions interfered materially with his right to manifest his religion. In his view the concept of unfair dismissal was in itself sufficient to mediate between the interests concerned. A requirement to justify an interference with an Employee’s rights under Article 9(1) would not involve any greater burden than that already placed on an Employer to demonstrate that a dismissal was “within the band of reasonable responses” and therefore a fair one in terms of the 1996 Act.

That an employer wishing to impose a contractual variation to an Employee’s terms and conditions must proceed carefully is both settled law and common sense. Copsey suggests that where the proposed changes to the Employee’s terms and conditions might impair the employee’s ability to manifest or observe his religious beliefs, particular care ought to be given to consulting with the employee to try to find a workable compromise or alternative position.

Rix LJ’s approach of treating the concept of unfair dismissal as being wide enough to encompass the balancing exercise required to justify an interference with Article 9(1) demonstrates the increasing importance of the ECHR in the application of domestic Employment law. His approach echoes that of Mummery LJ in the earlier Court of Appeal decision in X v Y, in which the Human Rights Act 1998 and the Convention were said to have an ‘oblique’ effect on domestic Employment law and involve a ‘blending’ of the law of unfair dismissal and the Convention right in question.

Where the reason for a dismissal is one which potentially interferes with an employees rights under the EHCR, it seems likely that an Employer would have difficulty demonstrating that a dismissal was fair where the interference could not be justified. Particular care should be taken by an Employer who is considering dismissing an employee in circumstances where it appears there may be an interference with their rights under the ECHR.

This case is available to read in full here