COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
EMPLOYMENT APPEAL TRIBUNAL
RIMER J PRESIDING
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIX
LORD JUSTICE NEUBERGER
| STEPHEN COPSEY
|- and -
|WWB DEVON CLAYS LTD
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MR THOMAS LINDEN & MR JAMES LADDIE (instructed by Lucy Atherton of the EEF) for the Respondent
Crown Copyright ©
Lord Justice Mummery :
"8.Remember the sabbath day, to keep it holy.
9. Six days shalt thou labour, and do all thy work.
10. But the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates.
11. For in six days the Lord made heaven and earth, and all that in them is, and rested the seventh day: wherefore the Lord blessed the sabbath day, and hallowed it."
" It has long been recognised that the demands of the workplace can come into conflict with both manifesting and changing religion in many different ways: Muslims may wish to visit the mosque on Fridays; Jews may not wish to work on Saturdays; Christians on Sundays…"
" 31. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and of their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism is dissociable from a democratic society, which has been dearly won over the centuries, depends on it.
While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to "manifest [one's] religion." Bearing witness in words and deeds is bound up with the existence of religious convictions.
33. The fundamental nature of the rights guaranteed in Article 9(1) is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs in Articles 8,10 and 11, which cover all the rights mentioned in the first paragraphs of those Articles, that of Article 9 refers only to "freedom to manifest one's religion or belief." In so doing, it recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone's beliefs are respected."
"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice or observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
(1) Although it is in a sense a "human rights case", the claim is not made under the 1998 Act. Such a claim would face two difficulties: (a) the employment tribunal has no jurisdiction to entertain claims for breach of the 1998 Act; and (b) no such claim could be made by the employee in the ordinary courts in this case under the 1998 Act, as the employer is not a "public authority" within the meaning of section 6 of the 1998 Act.
(2) The case is not about the incompatibility of the unfair dismissal provisions of the 1996 Act and Article 9. In that respect it differs from the claim in R (Williamson & Ors) v. Secretary of State for Education and Employment  2 WLR 590 (Williamson) that primary legislation should be declared to be incompatible with Article 9 (in an unsuccessful challenge to section 548 Education Act 1996 prohibiting corporal punishment by staff in schools, the House of Lords held that interference with the Article 9 right was justified under Article 9(2)) .
(3) Although discrimination points occasionally surfaced in the course of argument, this is not a case of direct or indirect discrimination on religious grounds. The Originating Application does not mention discrimination of any kind. The claims set out are for unfair dismissal, breach of Convention rights Articles 8 and 9 and failure to make "reasonable accommodation" for his religious beliefs regarding Sunday as "a day of rest in remembrance of the Lord Jesus." No claim for discrimination on the ground of religion or belief could have been brought by Mr Copsey under the Employment Equality (Religion or Belief) Regulations 2003, which only came into force on 2 December 2003 after the relevant events in this case had occurred. Those Regulations were made under the European Communities Act 1972 in order to implement an EC Directive. They are concerned with European Community rights not to be discriminated against in employment, and not with Convention rights conferred on citizens against public authorities.
(4) Despite the tone of some of the submissions made by and on behalf of Mr Copsey, this is not a case about religious persecution or religious intolerance. It is a bona fide employment dispute about the possible legal limitations placed by Article 9 on the undoubted right of an employer to set the working hours of those employed and paid by him to work for him and to dismiss an employee who does not keep to the agreed working hours or agree to reasonable changes in them. A conduct reason or some other substantial reason may justify dismissal, provided that it is fair and reasonable to dismiss the employee for such a reason.
(5) On the findings of fact made by the employment tribunal Mr Copsey was not dismissed for "being a Christian." There was no finding that Devon Clays were anti-Christian or "anti" any other religion or religious practice or observance as such. Devon Clays employed other employees holding religious beliefs and, where possible, attempted to accommodate their beliefs. The reason for Mr Copsey's dismissal (that being the set of facts known to the employer or beliefs held by him which caused him to dismiss the employee: Abernethy v. Mott Hay and Anderson  ICR 323 at 330) was held to be his refusal to agree to a contractual variation in his working hours so as to provide that he should work a 7 day shift including a Sunday, if needed. The perception of Devon Clays and of the employment tribunal was that that reason was not in any way connected with his religious beliefs (see paragraph 38 of the extended reasons of the employment tribunal). In their view it was "some other substantial reason" of a kind such as to justify the dismissal of an employee holding the position which the employee held (section 98(1)(b) of the 1996 Act). Mr Copsey, who had an excellent employment record, understandably had a different perception of the reason for his dismissal, namely that, as his refusal to agree was based on a possibility of his being required to work on a Sunday contrary to his sincerely held religious beliefs, he was dismissed for a reason connected with his religious beliefs, that Article 9 was engaged and that his Convention right to manifest those beliefs had been breached. It will be necessary to consider the rival arguments on this point later in the judgment.
Decision of employment tribunal
Decision of Employment Appeal Tribunal
Mr Copsey's Submissions
(1) Article 9 was engaged. Mr Copsey's refusal to agree to work on a Sunday shift led to his dismissal by Devon Clays. His refusal was a manifestation of his religion. Religion includes religious observance and practice. It covers the observance of Sunday as a day of rest. He refused to work a 7 day shift because it necessitated working on a Sunday. He was dismissed for that refusal. The dismissal was connected with the manifestation of his religion. It was sophistry to assert or find the contrary.
(2) The 1996 Act should have been applied by the tribunal and the assessment of reasonableness of the dismissal made with due consideration for Article 9, as required by the principle of interpretation in section 3 of the 1998 Act. Section 98 of the 1996 Act and the reasonableness of a dismissal were affected by the higher order (or heightened or elevated) Convention rights introduced by the 1998 Act. It is not reasonable for an employer or a tribunal to refuse to take the employee's religious views into account.
(3) Although Devon Clays are private employers, the employment tribunal is a public authority, which is under a duty not to act incompatibly with Article 9 and to apply section 3 to the construction of section 98. The tribunal must apply a consistent standard to all employees, whether their employer is a public authority or a private sector employer. It failed to apply the 1996 Act with due consideration to Article 9.
(4) The Commission's decision in Stedman v. UK ...see paragraph 34 below) that Article 9 was not engaged in circumstances such as this, because the employee was able to resign and be free to manifest his religious observance, was incorrect, inadequate and distinguishable. Article 9 is unaffected by the principle of freedom of contract. The right applies to dismissal from employment. Religious views and observances and practices of employees must be reasonably accommodated having regard to the needs, nature and resources of the employer's business, the flexibility of the workforce, health and safety factors, and the attitude of the employer.
(5) He referred to provisions (Article 2(5)) in the European Social Charter relating to conditions of work, in particular a weekly rest period coinciding with a day recognised by tradition or custom in the country or region concerned as a day of rest. ( I note that the Social Charter is a treaty ratified by the United Kingdom, but it has not been implemented into English domestic law. The provision is not related to the religious rights of an individual.)
(6) He also referred to the position under Canadian law regarding the duty of "reasonable accommodation" in anti-discrimination legislation. He cited Re Ontario Human Rights Commission v. Simpson-Sears Limited (1985) 23 DLR (4th ) 321, a case of a shop worker becoming a Seventh Day Adventist, in which the Canadian court identified the factors to be considered in applying the test of "reasonable accommodation". ...As I indicated earlier, this is not a discrimination case.)
Discussion and conclusion
A. Interference and engagement of Article 9
"……the Applicant was dismissed because he refused to accept a change to the 7 day shift pattern. The tribunal finds that his dismissal was not in any way connected with his religious beliefs."
"…..the obligation to observe the rule governing his working hours. He was cautioned by his employer, not having relinquished his post after the irreconcilable conflict arose between his religious convictions and his working hours.
In these particular circumstances the Commission finds that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours. This refusal, even if motivated by his religious convictions, cannot as such be considered protected by Article 9 para. 1. Nor has the applicant shown that he was pressured to change his religious views or prevented from manifesting his religion or belief.
The Commission would add that, having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion. In sum there is no indication that the applicant's dismissal interfered with the exercise of his rights under Article 9 para.1"
" The Commission thus considers that, had the applicant been employed by the State and dismissed in similar circumstances, such dismissal would not have amounted to an interference with her rights under Article 9(1). A fortiori the United Kingdom cannot be expected to have legislation that would protect employees against such dismissals by private employers…"
(1) The Commission rulings on non-interference with the Article 9 right are repeated assertions unsupported by the evidence or reasoning that would normally accompany a judicial ruling.
(2) The rulings are difficult to square with the supposed fundamental character of the rights. It hardly seems compatible with the fundamental character of Article 9 that a person can be told that his right has not been interfered with because he is free to move on, for example, to another employer, who will not interfere with his fundamental right, or even to a condition of unemployment in order to manifest the fundamental right.
(3) The argument that the complainant is free to resign and go to work elsewhere was not deployed by the Strasbourg Court against the applicants in Smith & Grady v. United Kingdom (1999) 29 EHRR 493. Their complaint that their discharge from the armed forces was in breach of Articles 8 and 14 was upheld. The context of the complaint was analogous to employment. (Indeed, there were proceedings in the industrial tribunal under the Sex Discrimination Act 1975 which were stayed and later withdrawn.) No argument was advanced that the complaint fell outside the ambit of Article 8 because the applicants were free to resign from the armed forces and thereby avoid the application to them of the Ministry of Defence policy on sexual orientation, to which they objected and which was ultimately held to violate the Article 8 right to respect for their private life, to be discriminatory contrary to Article 14 and to be unjustified. It was not argued that they had waived their Convention rights by joining the armed forces in the knowledge of the policy of exclusion by the Ministry of Defence. The only point against non-interference taken by the United Kingdom was that the discharge would not have amounted to an interference in the case of those applicants who were aware of the policy and of its application to them at the time when they were recruited. The Court dealt with the case as one in which justification was required for an exclusion policy, which interfered with the Convention rights.
(4) The "free to resign" argument found no favour with the Court of Appeal in the case of R(SB) V. Head Teacher and Governors of Denbigh High School  EWCA Civ 199, in which it was held that the Article 9 right of a Muslim pupil applied in respect of a school uniform policy, which was objected to on religious grounds, when she was excluded for non-compliance with the policy without taking proper account of the Article 9 right or of the justification for interfering with it, and without following the statutory procedure for exclusion from school. As appears from paragraph 84, it was no answer to the complaint to say that the applicant was free to enrol in a different school, which had no school uniform policy, or which had a policy allowing the applicant to wear clothes manifesting her religious beliefs. (Leave to appeal has been granted by the House of Lords.)
(5) In Williamson (see above) the House of Lords held that the Article 9 right of the parents to manifest their beliefs about the corporal punishment of children in schools was engaged and was materially interfered with by section 548 of the Education Act 1996, but that the interference in the primary legislation was justified under Article 9(2).
"38. ……What constitutes interference depends on all the circumstances of the case including the extent to which in the circumstances an individual can reasonably expcct to be at liberty to manifest his beliefs in practice."
Lord Justice Rix :
Ahmad v. ILEA; Ahmad v. United Kingdom
"The school time-table was well known to Mr Ahmad when he applied for the teaching post. It was for the usual teaching hours from Monday to Friday, inclusive. If he wished to have every Friday afternoon off for his prayers, either he ought not to have applied for this post: or he ought to have made it clear at the outset and entered into a 4½ -day engagement only. This was the sensible thing for him to do. Instead he undertook full-time work without making any disclosure that he wanted Friday afternoon off for prayers.
I think that section 30 can be applied to the situation perfectly well by reading it as subject to the qualification "if the school time-table so permits". So read, it means that he is entitled to attend for religious worship during the working week if it can be arranged consistently with performing his teaching duties under his contract of employment…
I have no doubt that all headmasters will try to arrange their time-table so as to accommodate devout Muslims like Mr Ahmad: but I do not think they should be compelled to do so, if it means disrupting the work of the school and the well-being of the pupils."
"I see nothing in the European Convention to give Mr Ahmad any right to manifest his religion on Friday afternoons in derogation of his contract of employment: and certainly not on full pay."
"Nor, in my judgment, can the answer to the question raised by this appeal be that a Muslim teacher has a right to absent himself for Friday prayers if his doing so will cause only a small inconvenience in the school. This solution would have some attraction because in the present case one of the headmasters concerned, Mr Foley, was able to accommodate Mr Ahmad's absence and it may be that others might have done so but for the policy adopted by the ILEA. But such a solution, quite apart from the grave practical disadvantage that it would involve detailed investigation in each case as to the degree of difficulty involved, is in my judgment unacceptable in principle since absence without leave in school hours would be a breach of contract even if the inconvenience were slight."
"throughout his employment with the ILEA between 1968 and 1975, the applicant remained free to resign if and when he found that his teaching obligations conflicted with his religious duties. It notes that, in 1975, the applicant did in fact resign from his five-day employment and that he subsequently accepted four-and-a-half day employment enabling him to comply with his duties as a Muslim on Fridays."
"21. The Commission accordingly notes that the applicant, at his first school in Division 5, was allowed to be absent for a short period after the Friday mid-day break in order to attend prayers at the mosque, but that serious difficulties arose as a result of his unauthorised absence, for the same purpose, from the schools at which he was subsequently employed. The Commission further notes the applicant's various suggestions, as to how the school authorities could and should have solved his problem, and the Government's answers thereto.
22. Having regard also to the requirements of the education system as described by the Government, the Commission does not find that in 1974/75 the ILEA – or, in their independent capacity, the schools of its Division at which he was employed – in their treatment of the applicant's case on the basis of his contract did not give due consideration to his freedom of religion.
23. The Commission concludes that there has been no interference with the applicant's freedom of religion under Article 9(1) of the Convention."
The Commission decisions considered in Williamson
"In these particular circumstances the Commission finds that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours. This refusal, even if motivated by his religious convictions, cannot as such be considered protected by Article 9 para. 1. Nor has the applicant shown that he was pressured to change his religious views or prevented from manifesting his religion or belief.
The Commission would add that, having found his working hours to conflict with his religious convictions, the applicant was free to relinquish his post. The Commission regards this as the ultimate guarantee of his right to freedom of religion. In sum, there is no indication that the applicant's dismissal interfered with the exercise of his rights under Article 9 para. 1."
The complaint was therefore found to be manifestly ill-founded.
"This then is a rather ambivalent collection of authorities, but even so there is a consistent thread running through them to the effect that it is not enough to show that a right protected under article 9(1) is theoretically in play unless it can also be shown that that right has been interfered with in a material way. In judging what is material the European Court of Human Rights will apparently have regard to any limitations which the complainant has voluntarily accepted. And it will not be bound to take the complainant's protestations of interference at face value if on an objective assessment they do not amount to anything material."
"What constitutes interference depends on all the circumstances of the case, including the extent to which in the circumstances an individual can reasonably expect to be at liberty to manifest his beliefs in practice…In choosing to pursue a military career Kalaç [see Kalac v. Turkey (1997) 27 EHRR 552] accepted of his own accord a system of military discipline which by its nature implied the possibility of limitations incapable of being placed on civilians."
Further discussion: and the concept of unfair dismissal
Lord Justice Neuberger :
"[T]he determination of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances … the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."