Since I don't do any litigation of employment matters, I'm not familiar enough with our statutory scheme to say whether a lower court or administrative finding of reasonableness on a record such as appeared in Copsey would be treated as a fact finding (normally, reasonableness is considered a jury--therefore fact--matter), but if it were, the appeals court could only overrule it if it were manifestly contrary to the evidence. It was unclear to me from reading the Copsey opinions whether the same standard applies in England, but I can envision a court here coming out (that is, finding for the employer) just as it did in Copsey, for the same technical reason--that the lower court could have found, on the record, that the employer's accommodation offers were reasonable, and that, to say the least, nothing in the ECHR rulings demanded a higher standard.
On 8/4/05, Paul Diamond <[EMAIL PROTECTED]> wrote:
Thanks for this reply;I am interest by the US principle that 'no rule' is established in circumstances in which the conlcusion is similar. Mummery LJ held himself bound, unless over-ruled by the Hof Lords and Rix LJ says Article 9 is engaged but can't interfere (even though this means the lower courts asked the wrong questions).I am interested on what basis a US court would feel free to challenge lower court fact finding; as noted the lower courts did not ask the correct questions on religious rights or accommodation, but use a 'reasonableness' test and since the employer has a need he is reasonable!Paul Diamond----- Original Message -----From: Vance R. KovenSent: Wednesday, August 03, 2005 2:56 PMSubject: Re: UK caseI find it difficult to figure out what principle to adduce from this case. If it were a panel opinion of a US Court of Appeals, there would be no rule established, since there were three opinions, all concurring in the result, but diverging significantly on the law. While Mummery and Rix, LJJ, would agree that the European Court of Human Rights has something to say that affects how UK employment law cases should be decided, only Lord Justice Mummery would give the ECHR case law binding effect to defeat the employee's claim. The case thus does not turn on a point of European law, but on the prosaic basis that an appellate court should not upset the trial court's finding of fact that the employer offered a reasonable accommodation to the employee's request not to work on Sundays. I'm not sure a US court would reach the same result on the facts of the case, but I think the principle of reasonable accommodation is consistent with our jurisprudence.
It is noteworthy that all three justices agreed that the ECHR case law on the subject of taking days off for sabbath observance is, as they were too polite to put it, bizarre and in apparent contradiction to the intent of Article 9 of the Human Rights Convention. Lord Justice Rix probably put the best face on what the ECHR has ruled by focusing on the question of whether it was the employer or employee who sought a change in pre-existing terms of employment; but even he couldn't abide the Stedman case, and discreetly chose to write it off as an aberration (a judicial sleight-of-hand that I'm sure we're all familiar with). By contrast, Lord Justice Mummery was prepared to accept the proposition (paraphrasing Justice Stewart's dissent in Von's Groceries) that the only consistency in the law is that the employer always wins.
On 8/2/05, Paul Diamond <[EMAIL PROTECTED] > wrote:Dear All,Not sure how this works; can you confirm if you have received this? I am Paul Diamond from the real Cambridge (UK, not MA)!This was a recent case in our Court of Appeal Copsey v WBB; you may find it interesting and ignore the Euro jargan; would be interest in your views. www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2005/932.htmlPaul
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Vance R. Koven
Boston, MA USA
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