The applicant was employed in his employer's sand processing operations, working under shift arrangements from Monday to Friday. Following a new order in 2000 which required a substantial increase in production the employer sought to change its employees' operating hours and to introduce a rotating shift procedure which included some Sunday working. The proposal was accepted by the union, but four operators, including the applicant, who did not want to work Sundays worked on a six-day basis. When a further need to increase production occurred in 2002, those operators were given the option of working the seven-day shift or consider redundancy on generous terms. The applicant refused to work on a Sunday, and after a failure to find employment within other sections of the employer's operations, when the applicant indicated that he was opposed Sunday working on religious grounds, he was dismissed for his refusal to agree to the new arrangements. On his complaint of unfair dismissal and claims that the employer breached his right to manifest his religious beliefs, under article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms as scheduled in the Human Rights Act 1998, in failing to make reasonable accommodation for those beliefs, the employment tribunal found that the employer had acted reasonably within section 98(4) of the Employment Rights Act 1996 and had done everything it could by engaging in a lengthy consultation process and offering the applicant alternative positions, so that the decision to dismiss was fair and within the band of reasonable responses which a reasonable employer could adopt. The tribunal also held that it had no jurisdiction to hear the claim under article 9. The Employment Appeal Tribunal dismissed an appeal by the applicant.

The applicant appealed.

The Court of Appeal held:
(Per Mummery LJ) The qualified right of a person under article 9 of the Convention to manifest his religion or belief was not engaged when his employer required him to work hours which interfered with such manifestation. (Per Rix LJ) Where an employer sought to change the working hours and terms of his contract of employment with his employee in such a way as to interfere materially with the employee's right to manifest his religion, article 9(1) was potentially engaged, but if a reasonable solution was offered and not accepted by the employee, it remained possible to say that there was no material interference. (Per Neuberger LJ) While the dismissal of an employee because he was not prepared to work on a Sunday for religious reasons could, depending on the facts, be unfair for the purposes of section 98 of the Employment Rights Act 1996, a balance had to be struck between the employer's requirement to run his business properly and the employee's requirement to observe his religion.
Since on the facts the employer had compelling economic reasons to change the working practices of its workforce, had fully explored with the applicant the alternatives to dismissal and done everything it could to accommodate his wish not to work on Sundays, the applicant's dismissal was fair and reasonable.

The appeal was dismissed.

Appearances: Paul Diamond (Taylor & Emmett, Sheffield) for the applicant; Thomas Linden and James Laddie (Solicitor, Engineering Employers' Federation) for the employer.