One of the controversial issues likely to arise under the Employment Equality (Religion or Belief) Regulations 2003 is the position of employees who do not want to work on Sundays for religious reasons.
In a fascinating case, the Court of Appeal has considered the issue of whether and when the dismissal of an employee who refuses to work on the Sabbath is unfair.
In Copsey v WBB Devon Clays, an evangelical Christian refused to work a seven-day shift system which had been introduced following consultation with the unions and with the support of a majority of the employees. He was dismissed after he rejected offers of alternative employment which had a working pattern requiring Sunday work. Mr. Copsey brought his case with the support of the Keep Sunday Special Campaign.
The Court of Appeal held that an employee's freedom to manifest his religious beliefs, under Article 9 of the European Convention on Human Rights, was not infringed by his (fair) dismissal for refusal to work on a Sunday. The tribunal and the EAT were mistaken in finding that Article 9 was outside the concept of unfair dismissal under section 98 of Employment Rights Act. However, on the facts of this case, the tribunal was correct to find that the employer had not failed to make reasonable accommodation for the employee's religious beliefs.
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, 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 working 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 (e.g. by offering alternative jobs).