Avicenna’s Account of Emanation

In the first part of this chapter, how far the desire (or obligation) felt by employees with religious convictions to engage in one or more of these three elements might relate to their employment obligations will be considered. There is clearly the potential for conflict if the employer requires the employee to be present in the workplace at a time when the employee has a religious obligation which he may well consider to be more important than the obligation owed to the employer. In such cases, the employee may wish to ‘negatively manifest’ his religious convictions by seeking to ‘opt out’ of working at particular times in order to pursue worship or observance alone or in the company of others. Such activities are most likely to take place outside of the workplace, although in some instances the religious obligation might be discharged on the employer’s premises (e.g. daily Islamic prayers in a dedicated prayer room).

In the following sections the relevant case law will be examined. Prior to this analysis, there is brief discussion of the issues concerned from the perspective of the religious employee. As these issues are to some extent dependent on the

nature of the religion itself, this discussion will be structured with reference to different religious traditions.

Religious obligations requiring ‘time off’ – some examples by religion

Judaism

In Judaism there is a divinely ordained day of rest from work known as the Sabbath. This was first ordained in the creation narrative: having created the heavens and the earth in six days, God rested on the seventh and made this a holy day.² The obligation was made more specific in the form of the tenth commandment given to Moses:

Remember the Sabbath day, to keep it holy. Six days you shall labour and do all your work, but the seventh day is the Sabbath of the Lord your God. In it you shall do no work: you, nor your son, nor your daughter, nor your male servant, nor your female servant, nor your cattle, nor your stranger who is within your gates. For in six days the Lord made the heavens and the earth, the sea, and all that is in them, and rested the seventh day. Therefore the Lord blessed the Sabbath day and hallowed it.³

The Jewish Sabbath begins at sunset on Friday night (a time which varies greatly depending on the seasons) and it ends at nightfall on Saturday.⁴ Keeping the Sabbath remains mandatory for observant Jews, and the rules of Sabbath observance are strict and most forms of working, both domestic and commercial, are forbidden.⁵ In addition, Jews attend the synagogue for collective prayer on Friday nights and Saturday, and many also meet in the synagogue collectively on weekday evenings, when they may recite both obligatory afternoon and evening prayers at the same time.⁶

2 Genesis 2 v 3.

3 Exodus 20 v 8-11 (NKJV); see also Deuteronomy 5 v 12-15.

4 Y Green, ‘When does the day begin?’ (2008) 36 Jewish Bible Quarterly 81.

5 See, for a discussion of the restrictions on Sabbath activities for observant Jews, Gavison and Davison, ‘Days of rest in multicultural societies’, 190-193

6 G Robinson, Essential Judaism (Pocket Books 2000), 7-54.

Christianity

After the death and resurrection of Jesus, the early Christians began to use the first day of the week as a day set aside for worship in community (sometimes known as ‘the Lord’s Day’) and that practice became established and continues to this day. How far the obligations imposed by the Jewish Sabbath apply to the Christian Sunday is a point of theological dispute. This has led to different positions emerging among Christians. One position is to view Sunday as the Christian Sabbath. Although this does not mean that all of the obligations incumbent upon Jews on the Sabbath apply, the fundamental principle that the Sabbath must be strictly observed as a day of rest from secular labour (unless, by concession, this labour is required to provide emergency services⁷) still applies to Christians.⁸ Another position is to take a more relaxed view of the Christian Sunday and to see it as a New Testament innovation and therefore fundamentally different from the Jewish Sabbath – in fact, more of an opportunity for rest and spiritual activity rather than a day to be observed in a traditional Sabbatarian manner.⁹ This distinction is important as it suggests that taking time off work on a Sunday is considered mandatory under the traditional Sabbatarian view, but not mandatory under the more flexible ‘New Testament’ view. However, although there are differences amongst Christians in the view taken of obligations towards Sabbath observance, the majority of practising Christians share an imperative to attend worship in congregation with others – this almost invariably takes place on a Sunday.

Certain Christian sects take different positions. Seventh Day Adventists, for example, reject the decision by the Christian Church to celebrate Sunday as the Lord’s Day and retain Saturday as their Sabbath, which is to be ‘observed’ as

‘the day of rest, worship and ministry’ in accordance with ‘God’s unchangeable

7 Jesus healed on the Sabbath, and spoke of the lawfulness of ‘saving life’ and ‘doing good’ on that day (Mark 3 v 4).

8 See, for a contemporary version of this argument, I Campell, On the first day of the week: God, the Christian and the Sabbath (Day One Publications 2005).

9 See for example, J Boice, Foundations of the Christian Faith (IVP 1986), 234.

law’ from Friday evening until Saturday evening.¹⁰ Jehovah’s Witnesses, on the other hand, reject the entire concept of the Lord’s Day although they do tend to meet on a Sunday, as well as mid-week; attendance at weekend and mid-week meetings is considered equally obligatory.¹¹

Islam

In Islam, the practice of the daily Salah of praying five short prayers (whilst kneeling towards Mecca) at different times of the day (of which between two and four may take place during normal working hours) is considered mandatory by some Muslim groups.¹² This will have a clear impact on the workplace as it will be necessary to briefly withdraw from workplace activities for the duration of the prayers. However, this requirement is not recognised as binding by all Muslims:

some permit the afternoon and evening prayers to be said together at the same time;¹³ whilst others omit to say the prayers at all.¹⁴ Where these prayers are carried out there is no obligation to do so in company with others except on a Friday, where a congregational prayer, the Jumu’ah, is held on Friday lunchtimes (between 1 and 2 pm); for most Muslim groups it is mandatory to attend this at a mosque.¹⁵ Indeed there is a specific injunction in the Quran with particular application to refraining from work in order to attend Friday prayers:

O you who believe, when the Salat is announced on Friday, you shall hasten to the commemoration of God, and drop all business. This is better for you, if you only knew. Once the prayer is completed, you may spread through the land to

10 Seventh Day Adventist Church, Fundamental Beliefs, see

<<http://www.adventist.org/beliefs/fundamental/index.html>>, accessed 12 May 2012.

11 A Holden, Jehovah's Witnesses: Portrait of a Contemporary Religious Movement (Routledge 2002).

12B Zaheer, ‘Accommodating Minority Religions Under Title VII: How Muslims make the case for a new interpretation of section 701(J)’ (2007) U. Ill. L. Rev. 497, 502.

13 MCB, Muslims in the Workplace, 14.

14 W Shadid and P van Koningsveld, Religious freedom and the position of Islam in Western Europe (Kok Pharos 1995), 101.

15 MCB, Muslims in the Workplace, 14.

seek God's bounties, and continue to remember God frequently, that you may succeed.¹⁶

To facilitate the Salah prayers there is an argument that an employer, with sufficient resources (e.g. an appropriate room which is not used or used infrequently), should provide some basic facilities. The MCB guidance makes the following observation:

Employers are not required to make costly adjustments for religious observance at work. However, employees may request access to a place to pray, and if it is possible to provide a room without an unacceptable adverse impact on business or other staff, then employers may be found to be indirectly discriminating if they refuse such a request.¹⁷

The guidance goes on to specify that the room should be quiet and unadorned with posters, pictures or photographs. It also makes recommendations about the supply of facilities for the wudhu ritual of feet washing which often precedes prayer – this could, for example, involve providing ‘storage in the washroom areas for a plastic washing-up basin and a small jug.’¹⁸

There are some further requirements specifically affecting Muslims. It is for example suggested that Muslims may wish to take time off for lunch later than they might normally so do in order to break their fast at the permitted time during the Ramadan period of fasting.¹⁹ There are also certain religious holidays where many Muslims are likely to request leave, including the three most important - Eid-ul-Fitr, Eid-ul-Adha and Yawm Al-Ashura. These annual holidays occur at different times each year according to the lunar calendar. Equally, Muslims are mandated to go on a pilgrimage to Mecca (the Hajj) at least once in their lifetime (and must accompany a widowed mother or sister).²⁰ This is estimated to require

16 Quran 62 v 9-10.

17 MCB, Muslims in the Workplace, 15.

18 ibid., 16.

19 ibid., 16.

20 Participation in pilgrimages is encouraged in other religious traditions (eg Roman Catholic and Orthodox Christianity and Hinduism).

an extended period of leave of between two and three weeks in duration.²¹ The period where Muslims engage in the Hajj is fixed each year in accordance with the lunar calendar and so falls on different dates in the solar year.²² It may be that particular circumstances arise when a Muslim employee has a pressing conviction that he should embark on the Hajj during work time; certainly, there may be a strong desire to do so, as Muslims are encouraged to perform the Hajj as soon as they have sufficient funds to do so.²³

The Case Law

Thus far, the religious basis of the desire for time off for religious observance and worship has been considered. In Chapter 4, consideration was given to the ECHR jurisprudence which chiefly concerns the issue of conflict between religious obligations outside of the workplace and work time. Attention will now turn to the relevant domestic case law. There is little authoritative case law, such that it is difficult to accurately assess the legal position in respect of this form of manifestation.²⁴ What is helpful to the analysis, however, is the thorough consideration given to the implications of Article 9 in Copsey v Devon Clays and how this case may be contrasted with very similar cases under the Religion and Belief Regulations 2003.

In Copsey, the claimant had been employed by Devon Clays since 1988, as a team leader in the sand processing plant. A shift system was in operation

21 MCB, Muslims in the Workplace, 17.

22 Zaheer, ‘Accommodating Minority Religions Under Title VII’, 504.

23 ibid.

24 The first EAT judgment under discrimination law on the issue was given on 29 December 2012 in Mba v Merton Council where a Christian care home worker was required to work on a Sunday against her express wishes. The written judgment was unavailable at time of writing, although press reports suggest that the fact that not all Christians refuse to work on a Sunday weighed in the outcome of the judgment (which went against the claimant) – if so this represents an application of the necessity test to this form of manifestation and accords with the general analysis presented here that tribunals pay little regard to the Sabbatarian view of Sunday; see D Barrett, ‘Christian loses battle over Sunday work’, The Sunday Telegraph (London, 30 December 2012) 6.

Monday to Friday with frequent weekend overtime, particularly on Saturdays.²⁵ In late 1999, Devon Clays Limited won a new contract which substantially increased production in the sand processing plant. This led to a decision to extend the operating hours to seven day working, 24 hours per day, with a new shift system for all staff covering the whole period.²⁶ Copsey (and three other staff) objected to working on a Sunday and a special provision was temporarily made for him not to work on that day, with a corresponding reduction in pay.²⁷ However, some two years later, another increase in production was necessary in response to a further new order. A meeting was held with Copsey and he was required either to join the Sunday shift system or to accept a redundancy package. At this point he indicated that his opposition to Sunday working had a religious basis.²⁸ He was given the option, which he refused, of working in the resin coated sand plant where there would be a reduced requirement for Sunday shifts. Following the failure of further negotiations, including the possibility of an alternative lower-paid laboratory job which he was unwilling to accept, Copsey was dismissed (without a redundancy payment) on 31 July 2002.²⁹ He then lodged his claim at an employment tribunal. Copsey argued that his employer had been under an obligation to accommodate his religious objections, which it had failed to do, and he had been unfairly dismissed.

The tribunal found that Devon Clays had made some efforts to accommodate Copsey, including the offer of alternative positions and had approached his colleagues to discover how far they might be willing to take on disadvantageous additional Sunday shifts in the place of Copsey (but found that there was little support for his position). Equally, Copsey himself did not adopt an entirely inflexible stance. He had said he was willing to work on a Sunday in an

25 Copsey [10].

26 ibid. [11].

27 ibid. [12].

28 ibid. [14].

29 ibid. [15].

‘emergency’ although the judgment records that it was not possible to agree on what such an emergency might be.³⁰

The tribunal determined that Copsey’s dismissal was not connected to his religious beliefs but was the direct result of his refusal to conform to a seven-day shift pattern. It found this dismissal to be fair under the category of ‘some other substantial reason’. Devon Clays had a sound business reason to require Copsey to work on Sundays, in response to ‘significant increases in production requirements’ which was more than a mere whim.³¹ The EAT rejected Copsey’s appeal and, following this, he applied to the Court of Appeal.

The Court of Appeal gave a much more nuanced consideration of the possible impact of Article 9 ECHR on Copsey’s unfair dismissal claim. Mummery LJ observed that, in the absence of other authority, the ‘link between [Copsey’s]

dismissal and his wish to manifest his religious beliefs [was] sufficiently material to bring the circumstances of the dismissal within the ambit of Article 9.’³² Thus the issue would become one of justification under Article 9 (2). However, he applied the EComHR rulings in Ahmad, Konttinen and Stedman,³³ to determine that, on the basis of this line of authority, in Copsey’s ‘specific situation’³⁴ (in the workplace) there was no interference with his Article 9 rights: ‘[t]he Commission's position on Article 9, as I understand it, is that, so far as working hours are concerned, an employer is entitled to keep the workplace secular. In such cases an employee is not in general entitled to complain that there has been a material interference with his Article 9 rights.’³⁵

As Article 9 did not therefore apply in this case, there was thus no need to consider justification arguments, although Mummery stated that, as Devon Clays had ‘done everything that they could to accommodate Mr Copsey’s wish not to

30 ibid. [16].

31 ibid. [8(5)].

32 ibid. [30].

33 See discussion in Chapter 4.

34 Copsey [37].

35 ibid. [38] (Mummery LJ).

work on Sundays’, then, had there been any interference with Article 9, it would probably be justified.³⁶

It will be recalled from the discussion in Chapter 4 that Rix LJ, in a partially dissenting opinion, took a more sceptical view of the consistency and application of the ECHR case law, however, he agreed with Mummery LJ that the employer had acted reasonably in its eventual decision to dismiss Copsey and had thus discharged its obligation to justify its interference with the claimant’s Article 9 rights, if engaged.³⁷ In the process however Rix clearly articulated the need for an employer to demonstrate that it had sought to make reasonable accommodations in order to justify restrictions on the religious rights of its employees:

It seems to me that it is possible and necessary to contemplate that an employer who seeks to change an employee’s working hours so as to prevent that employee from practising his sincere adherence to the requirements of his religion in the way of Sabbath observance may be acting unfairly if he makes no attempt to accommodate his employee’s needs.³⁸

The exact nature of the anticipated accommodation is naturally not articulated in full. However, there is a general implication that the obligation belongs to the employer to initiate, and a corresponding onus on the employee to respond constructively. However, in Lord Neuberger’s opinion, there is a suggestion that the onus may be on the religious employee, when asked by his employer to work on a Sunday, ‘to identify another worker, with his particular skills, who would be prepared to work in his place on a Sunday.’³⁹ It is submitted that this is

36 ibid. [41].

37 Interestingly, Lord Neuberger took the view that the test of reasonableness required by law to demonstrate that a dismissal is fair under the Employment Rights Act 1996, provided equivalent protection for employees such as Copsey than would Article 9 if it could be applied to the workplace. As he put it: ‘the provisions of the 1996 Act would have the same effect, in my view, with or without any impact from Article 9’ (see Copsey [93]).

38 ibid. [71] (Rix LJ).

39 ibid. [88] (Neuberger LJ).

unsatisfactory. The burden should naturally be on the employer to seek alternative ways of meeting its objectives (as indeed occurred in Copsey), not the employee.

One of the first cases to test similar issues under the Religion and Belief regulations was Williams-Drabble v Pathway Care Solutions Ltd and anor⁴⁰. The employment tribunal judgment in this case just predated the Court of Appeal decision in Copsey and is therefore particularly ripe for comparison. Article 9 arguments were not raised in Williams-Drabble – thus similar issues were examined under entirely different legal provisions.

The facts of the case were as follows. Williams-Drabble was a practising Christian. She made this clear when she applied to work for Pathway Care Solutions Ltd in 2003 and it was agreed at the subsequent interview that she would not be rostered to work shifts on Sundays which would prevent her from attending a church service which began at 5 pm. In 2004, Williams-Drabble was told that she would in fact be required to work a shift beginning at 3 pm on Sunday. Williams-Drabble refused. She was told that she had a choice - to work the Sunday shift; to ask another employee to exchange shifts with her; or to hand in her notice. She chose to resign, and lodged a claim at an employment tribunal for discrimination on the grounds of religion and belief.

The tribunal found that Williams-Drabble had indeed suffered indirect discrimination. Requiring her to work when she normally went to church on a

The tribunal found that Williams-Drabble had indeed suffered indirect discrimination. Requiring her to work when she normally went to church on a