Copsey v WWB Devon Clays Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,LORD JUSTICE WARD,Lord Justice Mummery,Lord Justice Rix,Lord Justice Neuberger |
| Judgment Date | 25 July 2005 |
| Neutral Citation | [2005] EWCA Civ 932,[2004] EWCA Civ 550 |
| Docket Number | A1/2004/0432,Case No: A2/2004/0432 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2005 |
[2004] EWCA Civ 550
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE RIMER)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Ward
Lord Justice Mummery
A1/2004/0432
MR PAUL DIAMOND (instructed by Taylor Emmet) appeared on behalf of the Applicant
THE RESPONDENT WAS NOT REPRESENTED
This is a renewed application for permission to appeal. The application is made by Mr Diamond, counsel for Mr Copsey, who failed in the Employment Tribunal in his claim for unfair dismissal, and also failed in the Employment Appeal Tribunal on his appeal against the Employment Tribunal's decision.
The application was first of all dealt with on paper by Pill LJ, who stated that he accepted the importance of the question whether and when employers can insist on Sunday working, but on the findings by the Employment Tribunal (and he referred to particular paragraphs of their extended reasons), he did not consider that it was arguable as a point of law in this case.
Mr Diamond has renewed the application, supported by a detailed skeleton argument. The view which I have formed, without the need to express any view at the moment on the prospect of success on this appeal, is that there is a compelling reason for the main question raised by this appeal to be heard by the full court. What I see as the main question, and it may be rather different from what Mr Diamond has put forward as the main issue in his skeleton argument, is this: what impact does the interpretative obligation on courts and Tribunals in section 3 of the Human Rights Act 1998 have on the interpretation of the unfair dismissal provisions of the Employment Rights Act 1996 in the case of private employers. This is a case where the employer is not a public authority and so the duty imposed on public authorities by section 6 of the Human Rights Act does not apply, but that does not mean that section 3 is without effect when a former employee of a private employer claims unfair dismissal in circumstances which fall within the ambit of a Convention right. In this case, Mr Diamond argues that the Convention Article 9 applies to this case, because what Mr Copsey was required to do, he says, was to agree to a new contractual term, which involved a change in shift working. That involved working on a Sunday when he had not previously been required to work on a Sunday, and he gave to his employers, Devon Clays, at a late stage, it is found by the Tribunal, religion and religious beliefs as a reason for objecting to working on a Sunday.
It seems to me that, although there are obvious difficulties in the way of this appeal succeeding, there is a wide-ranging question, on which this court has already heard argument in the case of K v Y [2003] IRLR 561, a case which is referred to in the judgment of Rimer J on behalf of the Employment Appeal Tribunal at paragraph 25. The Convention right raised in that case is the right to private life, but similar questions are raised (because the employer in that case was also a private employer), as to what effect section 3 has on the unfair dismissal provisions of the 1996 Act. I would grant permission to appeal on the basis that there is here a compelling reason in the form of the question I have identified under section 3 of the Human Rights Act, which is deserving of a full hearing by the Court of Appeal.
The only other matter I would mention is that — I am sure Mr Diamond is aware of this but his client must be made aware of this too — no orders for costs have so far been made in these proceedings, although Mr Copsey has failed before both the Employment Tribunal and the Appeal Tribunal. Mr Copsey must be clear that, if an appeal is brought to this court and fails, a different regime as to costs applies. The normal rule is that an unsuccessful appellant is ordered to pay the costs of the respondent. I mention that because the costs can be substantial, and it sometimes comes as a surprise to those who have litigated cost-free in the Tribunals, that they may be subjected to a heavy order for costs in this court.
For those reasons, I would grant permission to appeal.
I agree.
Order: application allowed. The appeal should be listed before three Lord Justices, of whom one should have EAT experience. The case is to be listed for one day.
[2005] EWCA Civ 932
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE
EMPLOYMENT APPEAL TRIBUNAL
RIMER J PRESIDING
UKEAT/0438/03/SM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Rix and
Lord Justice Neuberger
Case No: A2/2004/0432
MR PAUL DIAMOND (instructed by Messrs Taylor & Emmet) for the Appellant
MR THOMAS LINDEN & MR JAMES LADDIE (instructed by Lucy Atherton of the EEF) for the Respondent
Introduction
What impact (if any) does Article 9 of the European Convention on Human Rights and Freedoms have on an unfair dismissal claim brought by an employee against a private sector employer? The context is that of a Christian employee, whose sincerity is not in question, seeking to manifest his religious beliefs by observing Sunday as a day of rest accordance with the Fourth Commandment (Exodus Chapter 20)—
"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."
Adherents of other religions also manifest their beliefs by abstaining from work on certain days. As pointed out in Employment Law & Human Rights (Robin Allen QC and Rachel Crasnow-2002) at paragraph 9.5 at p137—
" 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…"
Until recently there has been considerably less activity in the English courts and tribunals about Article 9 than about the Convention Articles relating to the right to life, to a fair trial, to private life and to freedom of expression. It is probably only a matter of time, however, before the fundamental and pervasive character of Article 9 will be more fully revealed. If the Article means what it says, it has the potential to be far reaching in its legal, social, economic and political effects. Its subject matter (strongly held beliefs affecting what we live for and how we live) is a unique force in both uniting and dividing human beings in society. The European Court of Human Rights spoke of its fundamental character and its limits in Kokkinakis v. Greece (1993) 17 EHHR 397 at 418–419—
" 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.
32…..
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."
Under Article 1 of the Convention there is an obligation on the Member States to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention. Article 9 is one of the rights and freedoms in Section I of the Convention, which is scheduled to the Human Rights Act 1998 (the 1998 Act).
It has not been argued in this court that the Article can be ignored because the complaint is against an employer in the private sector rather than a public authority employer, against whom there would be an express right under the 1998 Act to invoke Article 9. It should be recorded, however, that no concessions were made about the horizontal effect of the Convention rights.
Article 9 provides that—
"1. Everyone has the right to freedom of thought, conscience and religion; this right...
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