Appeal No. UKEAT/0438/03/SM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 November 2003
Judgment delivered on 13 February 2004

Before
THE HONOURABLE MR JUSTICE RIMER
MISS G MILLS
MR B M WARMAN

MR S M COPSEY	APPELLANT

WWB DEVON CLAYS LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PAUL DIAMOND
(of Counsel)
Instructed by:
Messrs Taylor & Emmet Solicitors
62-64 Wilkinson Street
Sheffield S10 2GJ	
For the Respondent	MR JAMES LADDIE
(of Counsel)
Instructed by:
EEF Legal Services
Broadway House
Tothill Street
London SW1H 9NQ	

THE HONOURABLE MR JUSTICE RIMER

1	This appeal is by Mr Stephen Copsey.  He appeals against a decision of an employment tribunal sitting at Norwich on 16 January and 18 March 2003 under the chairmanship of Mr K.J. Palmer.  The tribunal’s extended reasons were sent to the parties on 15 April 2003.  The tribunal dismissed Mr Copsey’s claim for unfair dismissal against the respondent, WBB Devon Clays Limited (“Devon Clays”).  It also refused his claim that his rights under articles 8 and 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms had been breached, and that Devon Clays had failed to make “reasonable accommodation” for his religious beliefs.  Mr Copsey was represented, both before the tribunal and us, by Mr Paul Diamond.  Devon Clays was represented before the tribunal by Mr Chesterfield, an employment relations adviser, and by Mr James Laddie before us. 

The Tribunal’s Findings

2	Devon Clays operates clay quarries in Devon and sand quarries throughout the UK.  It employs some 900 people in the UK, including 59 at its sand quarry in King’s Lynn.  It engages an extraction company to quarry the sand, which delivers the sand to Devon Clays’ processing plants.  Devon Clays then blends, washes and purifies the sand and delivers it to its customers.

3	The King’s Lynn site has both sand processing plants and resin coated sand plants.  Mr Copsey was one of 12 workers in the former, comprising the No. 1 flint glass sand wash plant, the No. 2 flint glass sand dryer plant and the No. 6 foundry sand wash plant.  Devon Clays’ practice was to work shift arrangements from Monday to Friday, with overtime being often worked on Saturday and occasionally on Sunday.

4	In late 1999 or early 2000, Devon Clays won an order for 13,000 tons of sand a year.  This involved an increase of over 34% in its sand orders.  To be able to meet the new order, Devon Clays had to increase its output.  It decided that the only way to do so cost effectively was to increase the time the plants were operated. It consulted unions representing the whole of its workforce about its proposal to introduce seven-day working, for 24 hours a day based on 12 hour shifts.  The proposal was that the operators would commit themselves to a minimum number of core hours over and above which Devon Clays could, at its discretion, also call on them to work a further period of up to 124 annualised hours.  These annualised, or banked, hours were to be used to provide cover for absences, holidays etc.  Devon Clays was not to have any right to require any further work from its operators beyond the 124 hours.  It was to pay for all the hours, both core and banked, whether or not they were worked.  Part of the proposal was that operators would be committed to a rotating shift pattern, which would include some Sunday working.  The unions agreed the principles of the proposals, and they were put into operation in about April 2000.

5	The agreement affected the 12 sand processing operators at the King’s Lynn site.  Eight agreed to work the seven-day shift pattern.  The remaining four, including Mr Copsey, indicated they were not happy to agree to work a shift pattern which included Sunday working.  Mr Copsey did not at this stage indicate that his refusal to work on Sundays was because of his religious beliefs.  Devon Clays came to a special arrangement with the four and allowed them to work on a six-day basis.  Three of the four agreed to work on a Sunday if required to do so, but Mr Copsey did not so agree.  As a result, he was paid less than the others.

6	All went well until early 2002, when Devon Clays received an order at the King’s Lynn site for a further 40,000 tons of sand.  This represented a further 8% increase in the production, with the consequence that the eight operators who had agreed to the seven-day shift pattern in 2000 would be under even greater pressure.  As a result, Devon Clays decided to try to bring all 12 operators, including the four dissenters, on to the standard seven-day pattern.  To this end, Mr Harrod of Devon Clays had a meeting with the 12 operators on 6 March 2002.  He explained the need for a seven-day working pattern from all of them.  The four dissenters were asked to consider moving on to a seven-day shift and were also asked to consider whether there might be any other jobs they would be willing to do on site.

7	Mr Harrod had a further meeting with the four on 27 March 2002.  He told them that Devon Clays’ view was that they should move to a seven-day shift pattern.  They were given the option to do so or to consider taking a generous redundancy package.  They were asked to consider any other options they might like to put forward.  Two agreed to the seven-day pattern, and two, including Mr Copsey, made no comment. 

8	On the following day, 28 March, Mr Harrod had a meeting with Mr Copsey.  Mr Copsey made it clear he would not move to the seven-day shift pattern.  This was because of the possibility that he would have to work on Sundays, although he indicated that he understood and accepted why Devon Clays wanted him to agree to the change.  Mr Harrod asked him if he would be interested in working in the resin coated sand plant, which operated a five-day rotating three-shift pattern although it did involve working some overtime on Saturday and Sunday.  Mr Copsey declined this suggestion, on the ground that he and resin “did not mix.”  He confirmed he was liaising with his union representative.  Mr Copsey then wrote to Mr Harrod on 3 April, indicating he was not prepared to work the seven-day shift system.  For the first time, he indicated that his opposition to working on Sundays was on religious grounds.  In a further letter of the same day, he applied for the position of works engineer.  On 30 April, Mr Harrod wrote to him with a warning that unless his agreement was forthcoming by 17 May, he would be dismissed on 31 May.  He was offered the option of signing a compromise agreement on what the tribunal described as being favourable terms, although the tribunal does not explain what they were.

9	There was then a meeting on 17 May attended by Mr Harrod, Mr Oldham, Mr Copsey and Mr Holdom of the GMB Union.  The outcome was that the deadline by which Mr Copsey had to decide whether to accept the seven-day shift pattern or a compromise agreement was extended to 31 May.  In addition, because there were some vacancies in jobs at Devon Clays which had to be filled, it was agreed that his employment would be extended to 31 July even if he refused to accept the seven-day pattern.  He was told he could appeal against the decision to dismiss him if he failed to accept the options put to him, and a provisional date for an appeal was set.

10	Mr Copsey did wish to appeal but, as he was off sick, his appeal took place rather later, on 20 June.  His appeal was dismissed.  The tribunal found that Devon Clays had taken soundings from his colleagues as to the extent of their support for him and had found that those who would be disadvantaged if he were made a special case had little sympathy for his position.  It also found that Devon Clays gave him several opportunities to transfer to alternative positions within the company, but he made it clear that under no circumstances would he contemplate a job which included the possibility of Sunday working.  As to this, all the jobs at the site included a requirement for Sunday working if needed.  One of the jobs offered to Mr Copsey was in the loading yard.  He refused this as well, on the ground that he considered that it too would require him to work on a Sunday.  The tribunal did not, however, accept that. It found that, whilst in theory that job required Sunday working, during the previous two years there had been only one occasion when one operator from the five-man team had been required to work on a Sunday.  The tribunal found that it was unlikely that, had Mr Copsey taken up the loading yard job, he would ever have been required to work on a Sunday.
11	The tribunal also found that although Mr Copsey had made clear in correspondence that he would be willing to work on a Sunday if a genuine and unavoidable emergency arose, agreement could not be reached as to what would constitute such an emergency.  He would not agree that a requirement to work on a Sunday might arise as a result of production demands.  

12	The outcome was that Devon Clays wrote to Mr Copsey on 21 June and explained that unless he accepted the seven-day shift pattern, the alternative job as a loading team operator or the compromise package, he would be dismissed.  He was given a further extension to the deadline.  He did not accept any of the alternatives, and so on 3 July Devon Clays wrote to him saying that he was dismissed with effect from 31 July 2002.  The tribunal made a finding (in paragraph 38) that he was so dismissed because he refused to accept a change to a seven-day shift pattern and that his dismissal was not in any way connected with his religious beliefs.  It also found (in paragraph 39) that Devon Clays employed other employees who held religious beliefs, and had where possible attempted to accommodate them.

13	In coming to its conclusions, the tribunal reviewed various arguments advanced by Mr Diamond on behalf of Mr Copsey, including points said to arise under the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”), the Human Rights Act 1998, the European Social Charter 1961, the Working Time Directive (93/104/EC) and the Working Time Regulations 1998.  The tribunal’s view was that the critical question was whether Devon Clays had shown that it had dismissed Mr Copsey for “some other substantial reason” within section 98(1)(b) of the Employment Rights Act 1996 and, if so, whether the dismissal was fair or unfair for the purposes of section 98(4).  The tribunal said:

“59	…Although the category is potentially open ended many of the fair dismissals under the heading of ‘Some other Substantial Reason’ arise because the employer is taking action to protect his business interests.  Often in such circumstances the employee has to accept changes in the terms and conditions of his employment and it is his refusal to accept the change that brings about the dismissal.  The cases suggest that the employer must have a pressing need to justify them imposing the change in terms and conditions and dismissing if the employer [sic: should be employee] refuses to accept such changes.  The case of Hollister v. National Farmers Union [1979] IRLR 238 found that where an employer imposed a reorganisation they could fairly dismiss an employee for failing to accept that reorganisation where the requirement to reorganise coupled with the employee’s refusal to accept the new agreement was a substantial reason of such a kind to justify the dismissal of the employee.  In essence the case decided that there needed to be a sound business reason for the reorganisation.
60	This case has subsequently been followed in the decisions of Bowater Containers Limited v. McCormack [1980] IRLR 50 and Genower v. Ealing Hammersmith and Hounslow Area Health Authority [1980] IRLR 297.
61	In the case of Chubb Fire Security Limited v. Harper [1983] IRLR 311 it does not follow that if the employee is acting reasonably in refusing the change the employer must be acting unreasonably in imposing it.  Both may be acting perfectly reasonably from their own vantage point. It is relevant to us whether the employer is acting reasonably in deciding that the advantage to him of implementing the reorganisation outweighs any disadvantage which the employee might suffer.
62	In the case of St John of God (Care Services) Limited v. Brooks [1992] IRLR 546 the reasonableness of a dismissal must be justified at the time of dismissal.  Accordingly, there may be circumstances where it was reasonable for an employer to propose a reorganisation but where the situation subsequently changed so that it was no longer reasonable to dismiss those who refused to accept it.  In that case the EAT held that it was relevant for a Tribunal to take into account the proportion of employees accepting and rejecting the offer.
63	A further factor which the Tribunal has to take into account in assessing whether a dismissal is fair is whether the employer in discussing the reorganisation enters into negotiations with any unions.
64	It is also relevant for the Tribunal to consider when assessing whether the employer has acted fairly under Section 98(4) whether the respondent acted within the band of reasonable responses in dismissing the applicant for some other substantial reason.  The cases of British Leyland v. Swift [1981] IRLR 91 (CA) and Iceland Frozen Foods v. Jones [1983] ICR 17 proposed the test and it has recently been confirmed in more recent cases.  It is not for the Tribunal to substitute its own view.”

14	Having so directed itself, the tribunal found that the reason for the dismissal was “some other substantial reason” within section 98(1)(b) of the 1996 Act of such a kind as to justify the dismissal of an employee holding the position Mr Copsey held.  It found that Devon Clays’ business reason for doing so was a sound one, namely that as a matter of economic necessity it had to increase its production requirements.  It found that Devon Clays had taken account of the interests of its employees, including the fact that the vast majority of its workforce had agreed to the seven-day shift pattern and that Mr Copsey was isolated in this respect.  Devon Clays had also involved the unions in prolonged discussions, and there was no indication that the unions disagreed with its view that it was necessary to require Mr Copsey to switch to a seven-day shift pattern.  The tribunal also found that Devon Clays acted reasonably for the purposes of section 98(4).  It found that Devon Clays did everything it could in the course of the lengthy consultation with Mr Copsey and discharged any obligation upon it to offer him alternative positions.  It held that the decision to dismiss fell within the band of reasonable responses open to a reasonable employer.  In short, it found that Mr Copsey’s dismissal was fair.  The tribunal held that it had no jurisdiction to hear Mr Copsey’s claim under the Human Rights Act 1998, and that “there is nothing which is in any way incompatible with the Human Rights Act in the application of Section 98 of the Employment Rights Act to a case of this nature where the Applicant was dismissed for failing to agree to new contractual terms.”  It concluded that it had no jurisdiction to entertain Mr Copsey’s claim that Devon Clays had failed to make reasonable accommodation for his religious beliefs. 

The Appeal to this Appeal Tribunal

15	Paragraph 1 of the order made by this appeal tribunal (HH Judge Prophet presiding) on the preliminary hearing of this appeal on 5 August 2002 directed:

“The appeal to go forward to a full hearing on the Decision of the Employment Tribunal that [Mr Copsey] was not unfairly dismissed, in particular with regard to [Mr Copsey’s] religious beliefs.  Mr Diamond has withdrawn the appeal with respect to paragraph 2 of the Decision of the Employment Tribunal.”

The reference to paragraph 2 of the decision was to the tribunal’s refusal of “[Mr Copsey’s] claim under the Human Rights Act 1998 and his claim for a failure to make ‘reasonable accommodation’…”.  Paragraph 3 of the order of 5 August 2002 gave “leave to amend the Notice of Appeal.”

16	The amended notice of appeal is dated 18 August 2002.  Paragraph 6 sets out what are ostensibly the sole grounds of appeal, as follows:

“6	The Grounds of Appeal are that the Employment Tribunal erred in failing to hold that [Mr Copsey] was dismissed by reason of (including discrimination based on) his religious belief (Christianity) for a refusal by [Mr Copsey] to work on Sundays; and for the failure of [Devon Clays] to make reasonable accommodation for such religious belief.”

Given the second sentence of paragraph 1 of the order of 5 August 2002, the last words of that ground of appeal surprised us, and Mr Laddie, for Devon Clays, objected to the “reasonable accommodation” point being argued. Mr Diamond, in turn, expressed surprise that there should be any question about his right to argue it, and said it had been common ground between him and Judge Prophet that he could and would do so, although he could not explain why paragraph 1 of Judge Prophet’s order recorded the opposite.  We heard a debate on whether Mr Diamond ought to be allowed to argue the point.  In the end Mr Laddie indicated that, although he had not come fully prepared to deal with it, he would not persist in his objection to Mr Diamond doing so.

17	Having identified in paragraph 6 of the amended notice of appeal what we understand to be the sole grounds of appeal, the notice then set out some 44 paragraphs by way of purported explanation of them.  Paragraph 46 indicated that, if “leave to appeal is granted” (meaning if the appeal was referred to a full hearing, as by the date of the amended notice it had been), Mr Diamond would “supplement these arguments with detail, in the Skelton [sic] argument.”  In fact, he produced no skeleton argument for the appeal, which was an unhelpful omission.  What he instead did was to provide us with his skeleton argument for the hearing before the employment tribunal, although it is fair to say that it covered the same legal arguments that he wanted to advance on the appeal.  What it obviously could not deal with was a section of the amended notice of appeal, headed “The Facts” and occupying paragraphs 38 to 45.  These paragraphs were devoted to assertions that certain of the tribunal’s findings were “absurd”.  In our view, the points they sought to make did not obviously justify that criticism, nor did they obviously raise arguable errors of law on the tribunal’s part.  We were anyway not satisfied that the order of 5 August 2002 permitted them to be argued, and Mr Laddie’s stance was that it did not.  We refused permission to Mr Diamond to develop these points. 

18	We turn to the grounds of appeal in paragraph 6 of the amended notice of appeal.  We remind ourselves that our sole function on this appeal, as with any other appeal to this appeal tribunal, is to decide whether the employment tribunal made an error of law in arriving at its decision.  Conventionally, that requires appellants to identify errors of law the tribunal is said to have made in its reasoning and conclusions.  It was an unusual feature of Mr Diamond’s presentation of the appeal that he made almost no reference to the tribunal’s findings and directed no express criticism to any of them. 

19	The key findings of fact by the tribunal are in paragraphs 38 and 70 to 78 of their extended reasons.  They were, first, that Mr Copsey was dismissed because he refused to accept a change to the seven-day shift pattern and that his dismissal was not in any way connected with his religious beliefs.  Second, that the reason for his dismissal was “a reason falling under Section 98(1)(b) being some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” and that it was clear that Devon Clays “had a sound business reason for requiring the change to [Mr Copsey’s] working pattern the refusal of which led to [his] dismissal.”  Third, that Devon Clays acted reasonably under section 98(4) of the 1996 Act, the tribunal adding that “[Devon Clays] did everything they could.  The process of consultation was lengthy…The Tribunal is in no doubt that [Devon Clays] discharged any obligation upon them to offer [Mr Copsey] possible alternative positions.  It is clear that [Mr Copsey] had every opportunity with respect to the position of laboratory assistant, loading team operative and the vacancy in the resin coated sand plant.”  Fourth, that the decision to dismiss fell within the band of reasonable responses which a reasonable employer could adopt and that, for reasons given, the dismissal was fair.

20	Against those findings of fact, the first proposition in paragraph 6 of the amended notice of appeal is that the tribunal erred in failing to hold that Mr Copsey was dismissed because of his religious beliefs as a Christian.  That is an assertion that it was in error in finding as a fact that Mr Copsey’s dismissal was “not in any way connected to his religious beliefs” but was simply because he refused to accept a change to the seven-day shift pattern.

21	That criticism of the tribunal’s findings was not developed in the 44 paragraphs of the notice of appeal to which we have referred and appears to us to be without foundation.  We can identify no error of law on the part of the tribunal in making the finding it did.  The submission that the tribunal ought to have made the different finding suggested in paragraph 6 is also not made easy by the fact that, as is recorded in paragraph 41 of the reasons, Mr Diamond “made no submissions [to the tribunal] on the Employment Rights Act 1996 Section 98 as to the reason for the dismissal, whether it was a potentially fair reason fair reason falling under that section and thereafter whether [Devon Clays] had acted in accordance with Section 98(4) in electing to dismiss for that reason.”  So although Mr Diamond made no submission to the tribunal that it should find that Devon Clays dismissed Mr Copsey because of his religious beliefs, we are asked to find that it erred in law in failing so to find.

22	During the argument, it became clearer how Mr Diamond sought to make good that assertion.  The main basis was that he said that Devon Clays’ treatment of Mr Copsey infringed his human rights under article 9 of the Convention.  Article 9, headed “Freedom of thought, conscience and religion”, provides:
“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 and 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.”

23	Mr Diamond’s main point was that the tribunal’s express finding that Mr Copsey was not dismissed because of his religious beliefs concealed within it an inevitable finding that in fact he was dismissed for that reason.  The proposition was that (i) Mr Copsey had made it clear that he held religious beliefs which required him to regard Sunday as a day of rest, (ii) it was his expressed wish to manifest those beliefs that made it impossible for him to accept the seven-day shift pattern, and (iii) the decision to dismiss him because he so refused was therefore necessarily a decision to dismiss him because of those beliefs.  Mr Diamond submitted that, whilst the tribunal’s express finding was that the dismissal was not in any way connected with those beliefs, there was no escaping the fact that it was.  He said it followed that the dismissal involved an infringement of Mr Copsey’s article 9 rights.  If so, we understood the argument to be to the further effect that either (i) it could not be said that the reason for the dismissal was “some other substantial reason” within section 98(1)(b) of the 1996 Act, or else (ii) that at least it could not be said that the dismissal was a fair one for the purposes of section 98(4).  We understand the latter to be the preferred way on which Mr Diamond sought to make Mr Copsey’s case.

24	We respectfully disagree with Mr Diamond’s analysis, which we regard as wrong.  Whether the reason for Mr Copsey’s dismissal was because he held particular religious beliefs, and wished to manifest them by the observance of a day of rest on Sunday, was a question of fact for the tribunal.  The tribunal addressed itself to the point but specifically rejected any such finding, and found that the only reason for the dismissal was because Mr Copsey declined to agree to the seven-day shift.  Devon Clays knew perfectly well that he so declined because of his beliefs that Sunday is a day of rest.  But it did not dismiss him because he held those beliefs or because he wanted to manifest them by observing Sunday as a day of rest.  There was no evidence to suggest that it did not respect his religious beliefs.  On the contrary, the evidence was that it fully respected them and sought to accommodate Mr Copsey in alternative positions within the company that would enable him to practise and manifest them as he wished (in particular, as a loading operator, which the tribunal found would be unlikely to result in any Sunday working).  Had Mr Copsey chosen to take up the offered alternatives, he would have remained in Devon Clays’ employment, and the continued holding by him of his Christian beliefs would have represented no bar to his doing so.  The reason he was dismissed was not because he held, or wished to manifest, particular religious beliefs.  It was because he declined to work seven-day shifts which the tribunal found Devon Clays reasonably required of all those 12 operators whose labour was required to generate the increased sand production necessary to meet the increased orders.  The tribunal’s finding did not impliedly include a finding that in fact he was being dismissed because of his religious beliefs.  As for the further suggestion in paragraph 6 of the amended notice of appeal that the dismissal decision amounted to discrimination against Mr Copsey, we regard this as also unsound.  As from 2 December 2003, discrimination on the grounds of religion or belief has been outlawed by the Employment Equality (Religion or Belief) Regulations 2003, but this was not the law at the time of the dismissal and we regard as unfounded the proposition that Devon Clays’ actions involved unlawful discrimination against Mr Copsey. 

25	Mr Laddie’s primary submission in response was that as Devon Clays is not (as we accept) a “public authority” within the meaning of section 6 of the Human Rights Act 1998, it was not subject to any prohibition under section 6 not to act in a way which was incompatible with a Convention right.  If so, Mr Copsey’s article 9 rights were not engaged, and it was irrelevant to consider article 9.  We did not have the benefit of any developed argument from Mr Diamond to the contrary effect.  We were, however, referred by Mr Laddie to the decision of this appeal tribunal in X v. Y [2003] IRLR 561, also a case involving a claim against a respondent which was not a public authority.  In that case, this appeal tribunal did approach the issue before it on the basis that the question was whether there was any breach of the appellant’s human rights (in that case under articles 8 and/or 14 of the Convention), although we do not find it easy to follow the precise nature of the route by which it arrived at that position, which was in part founded on a concession.

26	We do not, however, propose to discuss this point further.  We will assume (without deciding) that Mr Diamond is correct that Mr Copsey’s article 9 rights were capable of being affected by Devon Clays’ acts and that Devon Clays will not have acted reasonably for the purposes of section 98(4) of the Employment Rights Act 1996 if its acts infringed those rights.  Even so, and having regard to the findings of the tribunal as to the reasons for the dismissal, we are not persuaded by Mr Diamond that Mr Copsey’s dismissal in the circumstances found by the tribunal involved any infringement of those rights or, therefore, that the tribunal was in error in finding that Devon Clays acted reasonably in dismissing Mr Copsey.

27	In considering Mr Copsey’s claimed Convention rights we are required by section 2 of the Human Rights Act 1998 to take into account (inter alia) decisions of the European Commission of Human Rights.  That requires us to take account of the Commission’s decision in Stedman v. United Kingdom (1997) 23 EHRR CD 168, which we regard as providing positive support for the conclusion that Devon Clays’ dismissal of Mr Copsey involved no breach of his article 9 rights.  In Stedman the applicant had also complained that her dismissal for refusal to work on Sundays constituted a violation of her freedom to manifest her religion in worship, practice and observance, as accorded by article 9.  The Commission rejected her complaint, saying:

“The Commission recalls that in Application No. 24949/94, Dec. 3.12.96, unpublished, an employee of the Finnish State Railways was dismissed for failing to respect his working hours on the basis that to work after sunset on a Friday was forbidden by the Seventh-Day Adventist Church, of which he was a member.  The Commission held in this case that the applicant was not dismissed because of his religious convictions but for having refused to respect his working hours.  In these circumstances the Commission considered that although the refusal was motivated by religious convictions, such a situation did not give rise to protection under Article 9(1).  Further, the Commission held in that case, that the applicant had failed to show that he was pressured to change his religious views or prevented from manifesting his religion or belief (inter alia, he was free to resign).  Likewise in the present case the applicant was dismissed for failing to agree to work certain hours rather than for her religious belief as such and was free to resign and did in effect resign from her employment.
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.  In the absence of the dismissal itself constituting an interference with the applicant’s rights under Article 9, the fact the applicant was not able to claim unfair dismissal before an Industrial Tribunal (who only had jurisdiction over employees of two years’ standing), cannot, of itself, constitute a breach of Article 9(1) of the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 27(2) of the Convention.”

28	That decision is directly in point.  The circumstances the Commission was considering are, in essence, identical to those relating to Mr Copsey’s dismissal as found by the tribunal.  The Commission held that a dismissal in such circumstances involves no interference with the employee’s article 9 rights.  If the employee takes the view that his employer’s work requirements are incompatible with the due exercise and manifestation of his religious beliefs, he is entitled to resign.  Cases such as the Finnish State Railways case and Stedman – and, in our view, this one – are not cases which can or should fairly be characterised as ones in which the employer has purported to impose any restriction on his employee’s article 9 freedom, or even on the employee’s freedom to manifest his religion or belief.  We are prepared to agree with Mr Diamond that the employer’s request of Mr Copsey to work a shift which would involve occasional Sunday working might, if Mr Copsey had agreed to it, have necessitated a modification of Mr Copsey’s regular practice of regarding every Sunday as a day of complete rest.  But the fallacy in Mr Diamond’s submission is that it fails to recognise that Mr Copsey was not obliged to agree to the seven-day shift pattern, or indeed to work for Devon Clays at all, and was free to resign if he concluded that his religious commitments were incompatible with the hours of work that Devon Clays wanted of him.  As he had that choice, nothing that Devon Clays did or proposed amounted to an infringement of his article 9 rights.  The tribunal’s view in the present case (in paragraph 79 of its reasons) was that “there is nothing which is in any way incompatible with the Human Rights Act in the application of Section 98 of the Employment Rights Act to a case of this nature where the Applicant was dismissed for failing to agree to new contractual terms.”  We agree.

29	Mr Diamond acknowledged that Stedman was unhelpful to his argument but submitted that we should regard it as wrong in principle and as having been impliedly reversed by Smith and Grady v. United Kingdom (1999) 29 EHRR 493.  We do not regard Stedman as wrong in principle.  If we may respectfully say so, we regard it as sound in principle.  As for the suggestion that it was reversed in Smith and Grady, it was not referred to in that case, probably because it was regarded as irrelevant to the different issues which it raised.  The issues there were (i) whether the investigations into the applicants’ sexual orientation and their subsequent discharge from service in the Royal Navy on the ground of their homosexuality amounted to an interference with their article 8 rights to respect for their private life, and (ii) whether any such interference was justified.  The court had no difficulty in finding that the investigations and discharged did amount to such interference, indeed the UK Government accepted as much: see paragraphs 69 to 71 of the judgment.  The real issue was over the question of justification under article 8.2.  We cannot see that the case sheds any light on the different type of circumstances which the tribunal found in the present case.  We regard as wrong the suggestion that Smith and Grady impliedly reversed Stedman.

30	Mr Diamond also relied on the decision of the European Court of Human Rights in Thlimmenos v. Greece (2001) 36 EHRR 15.  We do not regard that as providing any help to Mr Copsey either.  Mr Thlimmenos refused to wear military uniform because he regarded it as contrary to his religious beliefs as a Jehovah’s Witness.  He was convicted for insubordination in so refusing.  He later qualified for appointment as a chartered accountant in Greece, but was refused appointment on the ground that he had been convicted of a felony.  He complained that the refusal involved an article 14 discrimination against him in the exercise of his article 9 freedom of religion, the basis for that being that he said that he was treated like any felon whereas his conviction had resulted from the exercise of his article 9 rights.  The court upheld his claim of article 14 discrimination, but made no separate finding that his article 9 rights had been violated.  We do not follow how that case assists Mr Copsey in his claim that Devon Clays’ actions violated his article 9 rights.

31	Mr Diamond also relied upon two Canadian decisions. The first was Re Ontario Human Rights Commission et al and Simpsons-Sears Ltd (1985) 23 DLR 321.  That was not a decision on an alleged breach of any Convention rights, it was as to whether there had been any unlawful discrimination against an employee on the grounds of her creed contrary to section 4(1)(g) of the Ontario Human Rights Code, which provided, so far as material, that “No person shall…(g) discriminate against any employee with regard to any term or condition of employment, because of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin of such person or employee.”  The present appeal is not about alleged discrimination against Mr Copsey.  If it is about any of his human rights, it is about those under article 9 of the Convention.  We derive no assistance in that connection from a decision on the different provisions of section 4(1)(g).  The other Canadian case Mr Diamond cited was Alberta Human Rights Commission v. Central Alberta Dairy Pool; Canadian Human Rights Commission et al., Interveners 72 DLR 417.  That turned on the relevantly different provisions of section 7 of the Individual Rights Protection Act 1980, and for like reasons we derive no help from it in considering Mr Copsey’s assertion that his article 9 rights have been infringed. 

32	Mr Diamond also relied on the European Social Charter 1961, which we do not understand to be part of English law.  In Article 2, headed “The right to just conditions of work,” the contracting parties undertook various things including, in paragraph 5, “to ensure a weekly rest period which shall, so far as possible, coincide with the day recognised by tradition or custom in the country or region concerned as a day of rest.”  We do not agree that that provision, at most exhortatory, can be said to have required Devon Clays to guarantee a day of rest to Mr Copsey every Sunday, or that it can have resulted in Mr Copsey’s dismissal for his refusal to work the seven-day shift pattern being unfair.  Regulation 11 of the Working Time Regulations 1998, which is part of English law, provides for the provision to employees of a weekly rest period, but does not provide that it must fall on a Sunday.  The tribunal rejected the reliance placed on the 1961 Charter by saying that it had formed no part of Mr Copsey’s claim and that, had an application to amend to include it been made, the tribunal “would have concluded that the Social Charter is not capable of direct enforcement…”.  We consider it would have been entitled to take that view. 

33	We conclude that the tribunal’s rejection of Mr Copsey’s claim for unfair dismissal involved no error of law.  Nor, as we consider follows, can it be said that the tribunal was in error in failing to hold that Devon Clays wrongfully failed to make reasonable accommodation for Mr Copsey’s religious beliefs.  We dismiss his appeal.