Copsey v WWB Devon Clays Limited
Religious belief: dismissal for refusing to work on Sundays is fair and does not breach Article 9
The Court of Appeal held that an employee’s freedom to manifest his religious beliefs under Article 9 of the European Court of Human Rights (ECHR) was not infringed by his dismissal for refusing to work on Sundays.
Copsey, a practising Christian, was employed by WWB Devon Clays (Devon Clays). In 2000, he refused to work a seven-day shift pattern introduced by his employer to meet its business needs. The proposed shift change was introduced following consultation with the trade union and with the support of the majority of employees.
In 2002, Devon Clays made another attempt to bring all of its workers on to the same shift pattern, but Copsey again refused to work on Sundays. Devon Clays dismissed him after he refused alternative offers of employment. These did not involve regular Sunday work, although Devon Clays could not guarantee that there would be no Sunday work.
Copsey claimed unfair dismissal, breach of Articles 8 and 9 of the ECHR, and failure to make reasonable accommodation for his religious belief that Sunday is a ‘day of rest’. The tribunal found that Copsey had been dismissed for his failure to agree to new contractual terms, not for his religious beliefs. In the tribunal’s view, this amounted to a fair dismissal for ‘some other substantial reason’. Copsey’s claims were dismissed by both the tribunal and the EAT.
The Court of Appeal unanimously dismissed Copsey’s appeal, stating that Devon Clays had done everything it reasonably could have been expected to do in the circumstances of the case to accommodate his desire not to work on Sundays.
This case arose before the implementation of the Religion or Belief Regulations (which came into force in December 2003), otherwise Devon Clays would also have had the burden of proving that its policy of Sunday work was a ‘proportionate means of achieving a legitimate aim’.
What you should do
- Consider the impact of contractual changes on employees, particularly when the changes could potentially put protected groups at a disadvantage, such as those with strong religious convictions. In some situations, it may be necessary to specifically accommodate such protected groups. Any change that does disadvantage a protected group may be unlawful, unless it can be justified as a proportionate means of achieving a legitimate aim.
- In any event, employers should consult with employees in relation to changes in their contractual terms to avoid claims for constructive dismissal or breach of contract.
Mountain Spring Water Co Limited v Ms I Colesby
Executive directors: dismissal following removal as a director still subject to fairness test
The EAT gives guidance on whether the termination of a directorship leads to an immediate and lawful termination of employment and the potential grounds for saying that the dismissal is ‘fair’.
Ms Colesby was an executive director of Mountain Spring Water and effectively ran the company, despite the fact that she was never given the title of managing director. Following a longstanding shareholder dispute, a resolution proposed by the majority shareholder was passed removing Colesby as a director. She did not have a written service agreement, but the employment tribunal found that Colesby was in fact an employee of Mountain Spring.
The tribunal held that Colesby had been unfairly dismissed because ‘some other substantial reason’ for dismissal had not been established and that her employer had breached her contract by summarily dismissing her. The tribunal said that Table A (model articles of association in the Companies Regulations 1985 which are incorporated into a company’s articles of association, unless specifically excluded) Article 84 (which deals with appointment of directors) did not automatically entitle Mountain Spring to regard Colesby’s employment as terminated following her removal as a director.
The EAT allowed Mountain Spring to appeal. The EAT held that the tribunal had wrongly interpreted Article 84 of Table A, and that Colesby’s employment automatically terminated when her directorship ended. Her summary dismissal was not therefore a breach of contract.
This decision followed from the unusual fact that Colesby did not have any separate agreement for the provision of services outside the scope of her duties as a director, and therefore Article 84 meant that her employment terminated automatically on her removal as a director.
The issue of unfair dismissal was remitted for reconsideration by the same tribunal. The EAT had some sympathy with Mountain Spring’s argument that there had been a breakdown in trust and confidence between it and Colesby in the context of a shareholder dispute and that this breakdown could, if it was irredeemable, form some other substantial reason justifying the dismissal.
Remember that whatever the employment position of a director, any dismissal must still be fair under section 98 of the Employment Rights Act.
What you should do
Consider whether the dismissal can be justified on the basis of an irredeemable breakdown in trust and confidence.
Burton v Glycosynth Limited
Unfair dismissal: words said in the ‘heat of the moment’
The EAT gives guidance on the effect of words spoken ‘in the heat of the moment’ by an employer and employee.
Mr Proctor worked as the operations manager of a chemical production company, Glycosynth Limited, run by Mr Burton. Proctor requested a meeting with Burton as he was angry about Burton’s behaviour at the staff meeting the previous day, where Burton disclosed details of Proctor’s personal financial position without his consent. However, Proctor did not intend to resign at that stage. After a heated discussion, Burton criticised Proctor’s management skills, at which point Burton alleged that Proctor had resigned on the spot by saying: “That’s it, I’m off.”
Proctor handed in his resignation that afternoon, saying that his notice period would commence the next day and that he had resigned because of Burton’s treatment of him. Burton asked Proctor to leave immediately.
Proctor claimed constructive dismissal, saying that Burton’s behaviour towards him was a breach of contract and as a result he was entitled to treat his employment as being terminated, or in the alternative, that he had been summarily dismissed.
The tribunal rejected Proctor’s claim that he had been constructively dismissed at the morning meeting and concluded that he had resigned. In particular, the tribunal took the view that his resignation was a result of Burton’s criticism of Proctor’s management skills and not the events of the previous days.
Nevertheless, the tribunal found that Proctor had been unfairly dismissed because, after Proctor had resigned, Burton had effectively dismissed him during his notice period without giving a reason for his dismissal.
The EAT confirmed that where it is the meaning of words said in the heat of the moment is unclear, the test to use is to ask what a reasonable bystander would take the words to mean.
Employers should be conscious of treating employees fairly even after an apparent resignation made in the heat of the moment.
What you should do
After a ‘heated exchange’, advise the relevant individuals to have a ‘cooling off’ period before making any final decisions.
Royal National Lifeboat Institution v Bushaway
Identifying the ’employer’ of temporary workers
The EAT finds that a temporary worker who was subsequently made permanent was an employee of the end user from the time she was initially engaged in a temporary role.
Ms Bushaway registered for work with RHG, an employment business, and entered into a written agreement which stated that she was neither an employee of RHG or the client Royal National Lifeboat Institution (RNLI) but that she was required to work for 37.5 hours per week, and that RHG would pay her on behalf of the client.
RNLI also entered into a short agreement with Bushaway which stated that RNLI was not her employer and that there was no obligation on RHG to compensate Bushaway if it provided her with no work and that she was not obliged to accept work. The latter provisions were designed to prevent Bush-away claiming that she was an employee of RHG as the obligation to provide work and to accept work are minimum legal requirements for an employment relationship.
Bushaway commenced her temporary assignment on 21 October 2002 and was taken on as a permanent employee by RNLI in early 2003. Eleven months later, Bushaway claimed that her employment was terminated by reason of constructive dismissal. She claimed her continuous employment dated back to 21 October 2002 thereby giving her the required one-year’s service to bring an unfair dismissal claim. RHG claimed that she had only been its employee for 11 months.
The tribunal stated that as well as looking at the contractual arrangements, it had to look at the conduct of the parties when deciding who is the employer. On this basis it concluded that RHG had been the employer of Bushaway from the start.
At the EAT, RNLI argued that an ‘entire agreement’ clause in the temporary contract meant that the tribunal should not look outside the written contract when determining whether RNLI was the employer. On this basis, RNLI said it was not the employer as the contract specifically stated this.
The EAT disagreed, and noted that the written contract did not accurately reflect the relationship. For example, while the contract with RNLI said that Bushaway did not have to perform work, her contract with RHG required her to work 37.5 hours. The EAT therefore concluded that the tribunal could look outside the terms of the written contract, and it upheld the tribunal’s decision.
Careful drafting of contracts can help, but do not assume that this will prevent your temporary workers from being your employees.
What you should do
- Review the contracts of your temporary workers and your working arrangements with them.
- Be aware of the risks of having long-term temporary workers, as this can be further evidence that they are your employees in which case, if they have a year’s service, they will be eligible to claim unfair dismissal.
- Consider requesting indemnities from your employment agencies in respect of employment-related claims and consider avoiding having temporaries for more than one year.