|
Legislation that may affect changes to work rotas
The European Convention on Human Rights
The Convention has been implemented in domestic law by means of the Human Rights Act 1998. Article 9 of the Convention provides that every person has the right to freedom of thought, conscience and religion, and to manifest their religion in practice or observance; this right is not, however, unfettered.
Infringement of the right to freedom of religion etc will be justified if it is deemed:
- to be in the interests of public safety;
- to protect public order, health or morals; or
- to protect the rights and freedoms of others.
Although the Human Rights Act 1998 is not directly binding on private employers, the employment tribunals and courts are obliged to interpret existing legislation to give effect to its provisions.
The Employment Equality (Religion or Belief) Regulations 2003
The Equality Regulations outlaw direct and indirect discrimination and harassment and victimisation on the grounds of religion or belief (actual or perceived). Compensation for religious discrimination is potentially unlimited and may include an element of compensation for injury to feelings.
|
Copsey v WWB Devon Clays Ltd
Facts
C's employer, DC, needed to change its shift arrangements to accommodate higher customer demand. The proposed changes would have required C to work a seven-day shift, including Sundays where required. C, a Christian, refused to accept the change in shift because of his religious beliefs.
When C indicated that he was not prepared to work a seven-day shift, his employers took soundings from his colleagues who would have been disadvantaged if he were made a special case, and found that they had little sympathy with his position. DC then entered discussions with C to see whether he would be prepared to take up an alternative position within the company that wouldn't involve Sunday working.
C was given various opportunities to transfer to alternative positions and did apply for one alternative position, but stated that he was unwilling to accept the lower salary attached to the post. All of the jobs included a requirement to work on Sundays if necessary, although it was found to be unlikely in relation to one of the positions that any Sunday working would ever be required.
As no solution could be found, C was eventually dismissed for refusing to agree to a contractual variation to his working hours. He then brought a claim of unfair dismissal.
Decisions
The employment tribunal found that the reason for C's dismissal was in no way connected with his religious beliefs.
The decision was appealed and the Court of Appeal was asked to consider whether Article 9 of the European Convention on Human Rights had any impact on an individual's ability to claim unfair dismissal against a private sector employer.
One of the key issues was whether any legal limitations were placed by Article 9 on the undoubted right of employers to set the working hours of those employed and paid by them and to dismiss an employee who does not keep to the agreed working hours or agree to reasonable changes in them.
The Court of Appeal unanimously held that C had not been unfairly dismissed. Although the individual analysis of the judges on the application and interaction of the Human Rights Act 1998 and the Employment Rights Act 1996 were all slightly different, it was clear to the Court that a balance had to be struck between the competing rights of the individual employee to practise their religion and the rights of the employer, who has a business to run. As DC had done everything it could to accommodate C's wish not to work on Sundays, his dismissal was not unfair.
C couldn't bring a claim under the Employment Equality (Religion or Belief) Regulations 2003 (the Equality Regulations) as they came into effect on 2 December 2003, well after the events in question.
The Equality Regulations
If a similar set of circumstances were to arise today, the Equality Regulations would apply and C would potentially have a claim of indirect religious discrimination on the grounds that DC's requirement to work a seven-day shift amounts to a provision, criterion or practice that would put persons of a Christian faith at a disadvantage.
To defeat such a claim, DC would have to demonstrate that the new seven-day shift requirement was a proportionate means of achieving a legitimate aim.
On the facts given, DC appeared to have explored every available option and had not imposed the new shift pattern on a whim. It is likely, therefore, that it would be able to successfully defend such a claim.
Williams-Drabble v Pathway Care Solutions Ltd
This case is an example of an employer failing to defeat a claim of indirect discrimination under the Equality Regulations.
Facts
WD was recruited by PC as a residential social worker. At her interview WD made it clear that she was a practising Christian and could not work on Sundays as she attended her local church service and had done so for a number of years. Five months later, PC issued WD with a new rota that required her to work two Sunday shifts that month. She called the managing director to explain that, as she had advised at interview, she could not work on Sundays. The director's response was that she would either have to work the shift or she could resign.
WD resigned and brought a claim of direct and indirect religious discrimination.
Decisions
The first instance tribunal found that there were no facts from which it could conclude that WD had been directly discriminated against on the grounds of her religion. It did, however, hold that by imposing a permanent rota change requiring her to work on a Sunday, this was a 'provision, criterion or practice' that, although applied equally to all staff, put practising Christians at a disadvantage and WD had suffered such a disadvantage, entitling her to terminate her employment without notice.
PC was therefore found to have unlawfully discriminated against WD in that it had constructively dismissed her.
Conclusion
In this case PC did not help itself - it failed to enter a defence or turn up at the hearing. If it had done so, it may have been able to demonstrate that the new shift rota was a proportionate means of achieving a legitimate aim, if, for example, it could demonstrate that due to staff turnover or a rise in the number of patients, the new shift pattern was required and the other staff were unable to cover WD's duties among themselves. It would, of course, have had to discuss the position with WD and the other staff and have clear evidence that it had assessed all possible options before reaching a decision. On the stated facts this was clearly not the case.
|