Decisione marzo 1981

European Commission of Human Rights. Ahmad v. United Kingdom, Application No. 8160/78

Before the European Commission of Human Rights

Eur Comm HR
March 1981

DECISION AS TO ADMISSIBILITY

The Facts

The facts as submitted by the parties may be summarised as follows.

1. The applicant, Mr. Iftikhar Ahmed, a citizen of the United Kingdom, was born in India in 1940. He is a school teacher by profession and living in London.

2. The applicant is a devout Muslim. It is the religious duty of every Muslim to offer prayers on Fridays and, if considerations of distance permit, to attend a mosque for this purpose.

3. From September 1968 until April 1975 the applicant was employed by the Inner London Education Authority (ILEA) as a full-time primary school teacher. His contract did not specify days or hours of attendance. His employment was subject to the rules and regulations of the ILEA which provide for standard school hours of 9.30 a.m. to 12.30 p.m. and 2 p.m. to 4.30 p.m. from Monday to Friday. School governors may, however, vary school hours to suit local circumstances and, in practice, the lunch hour in certain schools is shortened to less than one-and-a-half hours. Accordingly, the extent of the lunch break varies from school to school.

4. From his appointment in 1968 until 1972, the applicant was employed, in Division 8 of the ILEA, at a school for maladjusted children, which was some distance away from any mosque. During that period he made no request to be allowed time off for attending a mosque.

5. After one year’s study-leave, the applicant returned to the school and was then advised that he was being moved to another school in the Division. He states that it was at this point that he decided that, if he were to move, then he might sensibly move to a school located near a mosque.

6. After his transfer, in February 1974, to Division 5 of the ILEA, the applicant found himself nearer to mosques. At his first school in that Division, a school for maladjusted children in which he was a supernumerary teacher, the headmaster allowed him to be absent from school for a short period after the mid-day break on Fridays in order to attend prayers at a mosque. The applicant had a teaching period after the Friday mid-day break but his colleagues did not object to his having time off to attend the mosque and were prepared to accommodate him in this respect.

7. The applicant was next employed, still as a supernumerary *128 teacher, at the Chisern School, Bethnal Green. There, according to the judgment of the Court of Appeal:
… he did not at first ask for permission to attend a mosque for Friday prayers but the headmistress, Miss Gadd, heard of his intention to do so and obtained advice from the Divisional Office that she could not stop him from going but should not give him permission to do so, and on his later asking for permission to go she gave him these answers and insisted that he should be back by 1.30, at the end of the mid-day break, but he never returned before 2.20 with the result that Friday afternoon teaching periods had to be adjusted until he returned and, although this adjustment was not difficult, the other staff, Miss Gadd said, had to accommodate him all the time [1].

8. With regard to the above statement of the Court of Appeal, the applicant has in the present proceedings submitted that he–
… did inform the headmistress on the Friday that he wished to attend the mosque. Accordingly, it is not quite correct to imply that he did not approach her for permission. At this point, the applicant told the headmistress what had happened at other schools. The headmistress stated that it would not be a problem for her to arrange but that she would require the ILEA to consent. It was she who suggested that the applicant write to the ILEA. It is wrong to state that Friday afternoon teaching periods had to be adjusted until the applicant returned because, at this time, the applicant was not a class teacher. He had no timetable. His role was to approach a class with an existing teacher and to pick out a group for special tuition, e.g. to do reading.

9. According to the Court of Appeal the applicant
… was next employed at the Bonner Primary School, Bethnal Green, where he asked for similar permission to attend a mosque for Friday prayers and the headmaster, Mr. Wilford, refused this request and reported his refusal to the Divisional Office, but Mr. Ahmad disregarded the refusal and attended the mosque with the result that on one Friday the headmaster had a class without a teacher until Mr. Ahmad returned. [ [1978] Q.B. 36, 42, per Orr L.J.]

10. The applicant submits with regard to the above statement of the Court of Appeal that he ‘was a supernumerary teacher. Each form had a class teacher and, accordingly, it cannot be correct that the headmaster had a class without a teacher until he returned’.

11. The applicant was next employed, still as a supernumerary teacher, at the Bethnal Green Primary School for one term from September 1974. The headmaster, having previously consulted the Divisional Office, refused his request to be allowed to attend a mosque on Fridays. The applicant attended the mosque in spite of *129 this refusal, and the deputy headmaster reported that there were grumbles about this from the staff.

12. Finally, for the first term of 1975, the applicant was employed as a stand-in teacher at a Roman Catholic primary school in Mile End. The headmaster was informed by the Divisional Office that the applicant had been refused permission to be absent during school hours on Fridays. The applicant (who at this school was allowed to use a room for prayers) continued to take time off on Fridays.

13. During his employment in Division 5 of the ILEA, the applicant, by letter of 5 April 1974, formally claimed the right to go to the mosque for Friday prayer. He invoked the Education Act 1944 and requested that the necessary arrangements be made in the school time-table.

14. By letter of 9 October 1974, the ILEA informed the applicant that his only recourse was to relinquish full-time employment and to apply for appointment as a part-time temporary terminal teacher to work four-and-a-half days a week only. By a further letter of 29 October, the ILEA refused to grant the applicant leave of absence ‘for any part of Friday afternoon sessions’.

15. By letter of 13 January 1975, the ILEA finally informed the applicant that, if he continued to take time off on Friday afternoons, there would be no alternative but to vary his appointment from full-time to four-and-a-half days a week.

16. In response to this letter, the applicant wrote on 27 January 1975 that he preferred to be dismissed rather than accept part-time teaching. On 29 January, he gave notice of resignation to take effect at the beginning of the Easter holidays.

17. The applicant was unemployed from April to December 1975. Shortly after his resignation, because of financial pressure, he reapplied to the ILEA to take up their offer of a part-time teaching post. The ILEA refused for the nine months referred to, but following the Tribunal hearing agreed to take the applicant on. He became re-employed on the basis of a four-and-a-half day week, spending two-and-a-half days in one school and two days in another school. For the remainder of his old contract, salary was deducted for every Friday afternoon that he was absent.

18. In July 1975, the applicant appealed to an Industrial Tribunal, contending that his resignation, having been brought about by the conduct of the ILEA, constituted unfair dismissal, within the meaning of the Trade Union and Labour Relations Act 1974.

19. The Tribunal heard evidence from an Islamic religious leader, Dr. Pasha, who stated that Friday prayers to the Muslim were like Saturday to the Jew or Sunday to the Christian. To absent oneself from Friday prayer was a sin, so much so that, in an Islamic country like Saudi Arabia, to absent oneself three times running without an excuse was to run the risk of beheading. The *130 only acceptable excuses were to be a woman, a child, a traveller, a slave or to be sick. In fact, no beheading for failure to attend Friday prayers was carried out in Saudi Arabia because everyone complied with this obligation. Dr. Pasha considered that, if there were three other Muslims in the school, the applicant could pray with them, but if not, he was required to attend a mosque, unless it was too far from the school; in that case he could say prayers in a quiet place of worship at the school. Dr. Pasha stated that negotiations were pending with the Department of Employment whereby employees would be allowed to go to the mosque as a matter of right. Some employers in the Midlands apparently allowed it already.

20. Mr. Andrews, the Assistant Education Officer of the ILEA, stated in evidence that he knew of no negotiation at national level as mentioned by Dr. Pasha. The ILEA must have hundreds of Muslim teachers, and none had ever before complained that the present problem existed.

21. In November 1975, the Industrial Tribunal dismissed the application, holding ‘that as a matter of contract the applicant was bound to be in school on Friday afternoons’ and that he was required ‘to work full-time’. Clause 9 of the ILEA Staff Code [2] could not in the Tribunal’s view cover regular Friday absence to pray in the mosque. Nor could the applicant, for this purpose, rely on section 30 of the Education Act 1944 [3]. The Tribunal also considered ‘whether on general grounds the respondents were being unreasonable and whether, despite the contract of employment, they could or should have accommodated him and adjusted his time-table accordingly’ and found on balance ‘that the respondents were not being unreasonable’.

22. The applicant’s petition for a review of this decision was refused by the Tribunal in December 1975.

23. The applicant now appealed, on points of law, to the Employment Appeal Tribunal, again relying on the above provisions. He stated, inter alia, that, as he had always been back at school at 2.15 p.m. on Fridays, his attendance at the mosque meant that he missed the first period on those afternoons (from 1.30 to 2.15 p.m.). In the discussions prior to his resignation, he had pointed out that, as he had free periods during the week, his time-table could easily be re-arranged to insert a free period for the first part of Friday afternoon. He thus was asking only for three-quarters of an hour off in every week without pay.

24. The Employment Appeal Tribunal dismissed the appeal in June 1976, substantially on the grounds already given by the Industrial Tribunal in its decision of November 1975. ( [1976] I.C.R. 461)

25. Leave to appeal to the Court of Appeal (on points of law) was refused by the Employment Appeal Tribunal in July, but granted by the Court of Appeal in July 1976.

26. In March 1977, the Court of Appeal (Lord Denning, M.R., Scarman and Orr L.JJ.) dismissed the appeal, Scarman L.J. dissenting.

(omissis)

41. The Court of Appeal did not give leave to appeal to the House of Lords.

42. In July 1977, the House of Lords refused the applicant’s petition for leave to appeal.

Complaint

The applicant contends that the interpretation, by the Tribunals and the Court of Appeal, of section 30 of the Education Act 1944 contravenes Article 9 of the Convention. The construction of section 30 as held by the Court of Appeal ‘would mean that a Muslim, who took his religious duty seriously, could never accept employment as a full-time teacher, but must be content with the lesser emoluments of part-time service, and would thus also be excluded from opportunities for promotion’.

The Law

Preliminary observations

1. The applicant complains that he was forced to resign from his post as a full-time school teacher because he was refused permission to attend a mosque for congressional prayer, and thus to miss about 45 minutes of classwork in the beginning of the afternoon, on those Fridays which are school days. The Government submit, as a preliminary observation, that the Convention does not protect the right as such to employment.

2. According to the Commission’s case-law, the right to hold a position in public service is not as such guaranteed by the Convention [See X v. Sweden(1970) 35 Coll. 56, 71 with further references] but the dismissal of a State official may in certain circumstances raise an issue under specific Convention provisions, such as Article 9 [X v. Denmark (1976) 5 D. & R. at 157-158] or Article 10 [X v. United Kingdom (1979) 16 D. & R. at 101-103]. The Commission considers that this jurisprudence applies also in case of alleged forced resignation, or variation of employment, like that of the present applicant. It here notes that, in the United Kingdom, the legislation prohibiting unfair dismissal may also be invoked by employees who claim that they have been unfairly forced to resign. The Commission has consequently examined the applicant’s complaint, that he was forced to resign from full-time employment, under the specific provisions of Article 9 and of Article 14 in conjunction with Article 9 of the Convention.

3. With regard to the applicant’s claim, that the school authorities should have arranged their time-table so that he could attend Friday prayers, the Commission further observes that the object of Article 9 is essentially that of protecting the individual against unjustified interference by the State, but that there may also be positive obligations inherent in an effective ‘respect’ for the individual’s freedom of religion [Cf. mutatis mutandis, Marckx v. Belgium(1979) 2 E.H.R.R. 330, para. 31].

Article 9 of the Convention

4. The freedom of religion guaranteed by Article 9 (1) of the Convention includes the right of everyone to manifest his religion in worship ‘either alone or in community with others’. The applicant’s complaint is confined to the freedom to manifest his religion in worship ‘in community with others’. The Government accept that attending the mosque amounts to manifesting religion in worship ‘in community with others’ but suggest that it may suffice to satisfy Article 9 (1) if the right to manifest one’s religion ‘alone’ is granted; the interpretation that both possibilities must always be available would have serious implications for the employment of persons belonging to religious minorities which do not have many places of worship. The applicant contests this interpretation.

5. The Commission has examined the ordinary meaning of the guarantee of the freedom of religion in paragraph (1) in the context both of Article 9 and of the Convention as a whole, taking into account the object and purpose of the Convention. It notes that the right to manifest one’s religion ‘in community with others’ has always been regarded as an essential part of the freedom of religion and finds that the two alternatives ‘either alone *133 or in community with others’ in Article 9 (1) cannot be considered as mutually exclusive, or as leaving a choice to the authorities, but only as recognising that religion may be practised in either form. It observes at the same time that the freedom of religion is not absolute but under the Convention subject to the limitations of Article 9 (2). The Commission concludes that the applicant may under Article 9 (1) claim the right to manifest his religion ‘in community with others’.

6. It is, however, disputed between the parties whether the applicant’s attendance of Friday prayers at the mosque on school days was during the relevant period–from his transfer to Division 5 of the ILEA until his resignation in 1975–required by Islam and thus a ‘necessary part’ of his religious practice. The Government submit that Islam would have permitted the applicant’s absence from the mosque because of his contractual obligation to teach at the school, and that his attendance at the mosque was therefore not ‘ necessary’ in the sense of the Commission’s case-law [X v. United Kingdom (1974) (Apr. No. 5442/74) 1 D. & R. at 41-42]. The applicant replies that Application No. 5442/74, concerning a prisoner, is not a good analogy for his present application and that, in any case, he was during the relevant period required by Islam to attend prayers at the mosque.

7. The Commission observes that its decision in Application No. 5442/74 took into account that applicant’s situation as a detained person. In the case of a person at liberty, the question of the ‘necessity’ of a religious manifestation, as regards its time and place, will not normally arise under Article 9. Nevertheless, even a person at liberty may, in the exercise of his freedom to manifest his religion, have to take into account his particular professional or contractual position. The parties’ submissions in the present case concerning the ‘necessity’ of the applicant’s attendance at the mosque are connected with their discussion of his special contractual obligations as a teacher.

8. The applicant states that it is the religious duty of every Muslim to offer prayers on Fridays and, if considerations of distance permit, to attend a mosque for this purpose. A mere contractual obligation cannot excuse absence–a man cannot willingly put himself into a position where he cannot attend. When the applicant commenced his employment with the ILEA in 1968 there was only one mosque in the London area and it was physically impossible for him to work with the ILEA and to attend Friday prayers. After his transfer, in February 1974, to Division 5 he found himself nearer to mosques. He was then obliged by his religion to attend Friday prayers.

9. The Commission observes, however, that, in 1968, the applicant, of his own free will, accepted teaching obligations under his contract with the ILEA, and that it was a result of this contract that he found himself unable ‘ to work with the ILEA and to attend Friday prayers’. The contract, and the teaching obligations it implied, continued until its termination in 1975. Between 1968 and 1974 the applicant–without ever raising this issue with the ILEA–accepted that, because of the contract, he was prevented from attending the mosque during school time. The Commission does not consider that the applicant has convincingly shown that, following his transfer in 1974 to a school ‘nearer to mosques’, he was required by Islam to disregard his continuing contractual obligations vis-à-vis the ILEA, entered into six years earlier in 1968 and accepted throughout the years, and to attend the mosque during school time.

10. In its interpretation and application of Article 9 of the Convention, the Commission does not, however, find it necessary to pursue this matter further– e.g. by obtaining expert evidence as suggested by the applicant–because it considers that, even if such a religious obligation were assumed, it could not, for the reasons given below, justify the applicant’s claim under this provision in the circumstances of the present case.

11. The Commission has already stated that the freedom of religion, as guaranteed by Article 9, is not absolute, but subject to the limitations set out in Article 9 (2). Moreover, it may, as regards the modality of a particular religious manifestation, be influenced by the situation of the person claiming that freedom. The Commission has recognised this in the case of a detained person [X v. United Kingdom (1974), cit.], and in the case of a person with special contractual obligations [X v. Denmark (1976) (App. No.7374/76) 5 D. & R. at 157-158]. The latter application was brought by a Danish clergyman who had been required by his church to abandon a certain practice of christening. The Commission then stated, with regard to the clergyman’s claim to freedom of religion in the performance of his functions, that the freedom of religion of servants of a State church ‘is exercised at the moment they accept or refuse employment as clergymen, and their right to leave the church guarantees their freedom of religion in case they oppose its teachings’. [Ibid. at p. 158].

12. The Commission observes that both the present case and Application No. 7374/76 concern persons with special contractual obligations, but that the present case is distinct from Application No. 7374/76 in particular in two respects: first, it does not concern religious manifestations in the course of the performance of professional functions, but absence from work for the performance of such manifestations; secondly, it does not relate to a religious dispute but to a coincidence of teaching obligations and religious duties. In 1968 the applicant, by his contract with the ILEA as interpreted by the domestic courts, accepted teaching obligations including duties on Fridays. According to the applicant, the teaching obligations did not from the beginning, but only following his transfer in 1974, conflict with his religious duty to attend congressional prayers at the mosque.

13. The Commission considers that its reasoning in Application No. 7374/76 cannot automatically be applied in the present case but must be adapted to its particular circumstances. It finds that, in the present case, the ILEA was during the relevant period (1974/75) in principle entitled to rely on its contract with the applicant. However, the question arises whether, under Article 9 of the Convention, the ILEA had to give due consideration to his religious position.

14. The Commission here notes that the applicant did not, when he was first interviewed for his teaching position, nor during the first six years of his employment with the ILEA, disclose the fact that he might require time off during normal school hours for attending prayers at the mosque. The Government state that such a disclosure might have resulted in the applicant being offered only part-time employment. The applicant submits that the United Kingdom should not operate a system in which a job applicant must indicate his religion and thus risk not to be appointed because of his religious obligations. The Commission observes that the present case does not raise the general issue of the confidentiality of information concerning one’s religion, but the question whether an employee should inform his employer in advance that he will be absent during a part of the time for which he is engaged. It considers it relevant for the appreciation of the parties’ position during the relevant period that the applicant had at no time before and during the first six years of his employment brought to the attention of the ILEA his wish to have time off during normal school hours for attending prayers at the mosque.

15. Referring to its decision on Application No. 7374/76, the Commission further observes that, throughout his employment with the ILEA between 1968 and 1975, the applicant remained free to resign if and when he found that his teaching obligations conflicted with his religious duties. It notes that, in 1975, the applicant did in fact resign from his five-day employment and that he subsequently accepted a four-and-a-half day employment enabling him to comply with his duties as a Muslim on Fridays.

16. The applicant points out that his present employment means less not only as regards his pay but also concerning his pension rights, chances of promotion and security of employment. He submits that his case could have been better solved by a re-arrangement of the school time-table permitting his absence for about 45 minutes at the beginning of the afternoon sessions on Fridays. The Government contest this possibility.

17. The Commission, in its consideration of the parties’ submissions, has had regard not only to the particular circumstances of the applicant’s case but also to its background, as described in the pleadings. It notes that, during the relevant period, the United Kingdom society was with its increasing Muslim community in a period of transition. New and complex problems arose, inter alia, in the field of education, both as regards teachers and students. The parties agree that the applicant’s case is not an isolated one and that it raises questions of general importance.

18. The Government state that separate education systems are administered in England, Wales, Scotland and Northern Ireland and that in none of these countries is the system a centralised one. Teachers are employed either by individual local education authorities or by individual schools and there appears to be no generally agreed practice for dealing with requests by teachers of any religious group (including Muslim teachers) for leave of absence from work in order to meet the requirements of their religion. The Council of Local Education Authorities in England and Wales are at present considering whether to issue guidelines on the subject.

19. The Commission accepts that the school authorities, in their treatment of the applicant’s case on the basis of his contract with the ILEA, had to have regard not only to his religious position, but also to the requirements of the education system as a whole; it notes that the complex education system of the United Kingdom was during the relevant time faced with the task of gradual adaptation to new developments in its society. The Commission is not called upon to substitute for the assessment by the national authorities of what might be the best policy in this field but only to examine whether the school authorities, in relying on the applicant’s contract, arbitrarily disregarded his freedom of religion.

20. It is in this perspective that the Commission has considered the parties’ conflicting submissions concerning the applicant’s conduct, and his treatment by the school authorities, from his transfer to Division 5 of the ILEA in 1974 until his resignation in 1975. It observes that the Government rely on facts as established in the judgment of the Court of Appeal that the judgment was submitted by the applicant when he introduced the application; and that the Court’s establishment of the facts was not then, but only in 1980, disputed by the applicant. The Commission also notes from the Government’s submissions that the Court relied on evidence given in the domestic proceedings and observes that, in the present proceedings, the applicant has offered no evidence to the contrary. It concludes that, in these circumstances, it must base its examination on the facts as established by the domestic court.

21. The Commission accordingly notes that the applicant, at his first school in Division 5, was allowed to be absent for a short period after the Friday mid-day break in order to attend prayers at the mosque, but that serious difficulties arose as a result of his unauthorised absence, for the same purpose, from the schools at which he was subsequently employed. The Commission further notes the applicant’s various suggestions, as to how the school authorities could and should have solved his problem, and the Government’s answers thereto.

22. Having regard also to the requirements of the education system as described by the Government, the Commission does not find that in 1974/75 the ILEA–or, in their independent capacity, the schools of its Division at which he was employed–in their treatment of the applicant’s case on the basis of his contract did not give due consideration to his freedom of religion.

23. The Commission concludes that there has been no interference with the applicant’s freedom of religion under Article 9 (1) of the Convention.

Article 14 in conjunction with Article 9 of the Convention

24. When addressing himself to the Commission the applicant only invoked Article 9 of the Convention. The Commission, noting that in the domestic proceedings his case was dealt with under section 30 of the Education Act 1944 as one of alleged religious discrimination, has considered the application also under Article 14 in conjunction with Article 9 of the Convention.

25. It is not the Commission’s task in this connection to express any view on the interpretation and application of national legislation, such as the Education Act 1944, by the competent domestic courts, but only to consider whether the result of this application constitutes discrimination in the sense of Article 14 of the Convention.

26. Article 14 safeguards individuals or groups of individuals, place in comparable situations, from all discrimination in the enjoyment of the rights and freedoms set forth in the other normative provisions of the Convention. [National Union of Belgian Police v. Belgium(1975) 1 E.H.R.R. 578, para. 44 with further references].

27. It does not appear from the applicant’s submissions that, as regards the fulfilment of his contractual teaching obligations in 1974/75, he was either individually or as a member of his religious community treated less favourably by the education authorities than individuals or groups of individuals placed in comparable situations. The applicant refers in his submissions to the position of Jewish children, but he has not shown that other teachers belonging to religious minorities, e.g. Jewish teachers, received a more favourable treatment than he himself.

28. The Commission further observes in respect of the general question of religious and public holidays, discussed in the parties’ submissions, that, in most countries, only the religious holidays of the majority of the population are celebrated as public holidays. Thus Protestant holidays are not always public holidays in Catholic countries and vice versa.

29. The Commission concludes that there is no appearance of a violation of Article 14 in conjunction with Article 9 of the Convention.
It follows that the application, both if considered under Article 9 and if examined under Article 14 in conjunction with Article 9, is manifestly ill-founded within the meaning of Article 27 (2) of the Convention.

For these reasons, THE COMMISSION declares this application inadmissible.

Footnotes:

[1] [1978] Q.B. 36, 42, per Orr L.J. The applicant states at para. 2 of his petition to the Commission that Friday prayers ‘took place at 1.00 p.m. and lasted for about one hour, and involved an absence of about three quarters of an hour from the afternoon teaching session’.

[2] ‘Religious observance: teachers other than supply teachers … who, for reasons of conscience, have objections to working on a particular day in term time, it being a day of special obligation in their religion, shall be allowed leave with pay on the understanding that such leave shall be restricted to days which are generally recognised in their religion as days when no work may be done.’

[3] Section 30 reads: ‘Subject as hereinafter provided, no person shall be disqualified by reason of his religious opinions, or of his attending or omitting to attend religious worship, from being a teacher in a county school or in any voluntary school, or from being otherwise employed for the purposes of such a school; and no teacher in any such school shall be required to give religious instruction or receive any less emolument or be deprived of, or disqualified for, any promotion or other advantage by reason of the fact that he does or does not give religious instruction or by reason of his religious opinions or of his attending or omitting to attend religious worship: Provided that, save in so far as they require that a teacher shall not receive any less emolument or be deprived of, or disqualified for, any promotion or other advantage by reason of the fact that he gives religious instruction or by reason of his religious opinions or of his attending religious worship, the provisions of this Section shall not apply with respect to a teacher in an aided school or with respect to a reserved teacher in any controlled school or special agreement school’.