In the next few weeks you might see a headline saying either “Christians win right not to work Sundays” or “Christians can be forced to work Sundays”. Either way, you should take that headline with a big pinch of salt.
There’s a case on this point in the Court of Appeal this week. But whatever the outcome of this one case, it’s not going to decide any general rule about Sunday working. So if there are no hard and fast rules about Sunday working, how are you supposed to know what your rights are?
In this case, a Christian care worker believes that she should not work on Sundays for religious reasons. Her employer managed to accommodate this in their shift pattern for several years, but eventually decided that they needed her to work some Sundays. She was forced to choose between her job and her beliefs, and so she resigned. She lost her claim in the Employment Tribunal and in the Employment Appeals Tribunal, but she is not stopping there and is now appealing once more, this time to the Court of Appeal.
It’s going to be an interesting case because, since the last hearing of this matter, there has been an important decision from the European Court of Human Rights and that might shift the balance on this sort of case. The European case, which was widely reported at the time, involved a British Airways employee who was not allowed to wear a cross with her uniform. Although the case was about dress codes rather than Sunday working, the same sort of principles apply.
Employees often ask for some sort of change to their working arrangements to accommodate their religious belief. Often they are asking for flexibility in dress codes, whether that is to allow them to wear a crucifix (as in the British Airways case), a beard, a kirpan or a veil. Or they might want changes to their working hours; Christian employees may not want to work Sundays, Jewish employees may want to leave early on Fridays and everyone might want an occasional day off for a religious festival. There is no absolute right for an employee to demand these sorts of changes. An employer can refuse them for legitimate business reasons. So there is a balancing act between the employee’s beliefs and the employer’s business needs. This always comes down to an assessment of the unique facts of the case. So, whichever way this current case is decided, it will not set any precedent on Sunday working.
The key change since the decision in the British Airways case is that there should be more of a focus on the employee’s individual beliefs. Until this decision, there was more consideration of whether the working practice, e.g. the dress code or the hours required, affected a religious group as a whole. Since the majority of Christians are prepared to work on Sundays, and do not feel that they must wear a cross at all times, then in these sorts of cases the employers could argue that there was no religious discrimination against Christians as a group. However, the recent European decision very much stressed that religion should be a matter of personal conscience. In deciding these sorts of cases, the courts should now consider the employee’s beliefs as an individual and not just as part of a group.
Whether this change in emphasis will be sufficient to shift the balance in the employee’s favour in this current case remains to be seen. She will still have to show that it would have been reasonable for her employer to accommodate her religious beliefs, in spite of the fact that there was clearly a business need for employees to work on Sundays.
Without any hard and fast rules to guide you, it can be difficult to know whether you are within your rights to ask for a change in your working conditions. The best guidance is to start of by making a polite request, rather than threatening litigation, and seeing where that gets you. You do not have an absolute right to demand that your working conditions be changed, but if your employer cannot agree to your request they should at least give you a considered response and explain their reasons. And remember this is about your beliefs, not anybody else’s, so a response that “So and so is also Christian / Muslim / Jewish and they don’t mind working Sundays / being clean shaven / staying late on a Friday” is just not good enough.
If you need advice about making a request, raising a grievance or bringing a claim for religious discrimination or constructive unfair dismissal, then contact one of our employment law team.