Sentenza 22 marzo 1977

Court of Appeal. Sentenza 21 febbraio-22 marzo 1977: Ahmad v. Inner London Education Authority.

Lord Denning M.R., Orr and Scarman L.JJ.

Held, dismissing the appeal (Scarman L.J. dissenting), that the termination of the employee’s full-time teaching contract was not “by reason of his religious opinions or of his attending … religious worship” within the meaning of section 30 of the Education Act 1944 which did not permit the employee to break his contract of employment by absenting himself from school during school hours; and that, in the circumstances, the employers had acted reasonably and the termination of that contract was not due to their conduct.

Per Scarman L.J. Section 30 of the Act of 1944 should be broadly construed against the background of article 9 of the European Convention on Human Rights and the policy of modern statute law, and, in the circumstances, the employee’s 45 minutes’ absence from class on Fridays to go to the mosque did not constitute a breach of his contract of employment.
Per Lord Denning M.R. and Orr L.J. Article 9 of the European Convention on Human Rights does not entitle an employee to absent himself from work, for the purpose of religious worship in breach of his contract of employment.
Per Lord Denning M.R. Section 30 of the Education Act 1944 entitles an employee to attend for religious worship during the working week if it can be arranged consistently with performing his teaching duties under his contract of employment.
Decision of the Employment Appeal Tribunal [1976] I.C.R. 461 affirmed.

APPEAL from Employment Appeal Tribunal.

The employee, Iftikhar Ahmad, appealed against the decision of the Employment Appeal Tribunal (Phillips J. and Mr. E. Humphries)[1976] I.C.R. 461 on June 8, 1976, dismissing his appeal from the decision of an industrial tribunal sitting in London who had dismissed his complaint of unfair dismissal against the employers, Inner London Education Authority (“I.L.E.A.”), on the ground that the I.L.E.A. were in breach of their duty under section 30 of the Education Act 1944 to vary the hours during which he was required to be at school and that by requiring him to take a part-time job or leave his employment the I.L.E.A. had unfairly dismissed him.

*38 The grounds of appeal were that the Employment Appeal Tribunal erred in law (1) in reaching the conclusion that the I.L.E.A. had satisfied the onus laid upon them by paragraph 6 (8) of Schedule 1 to the Trade Union and Labour Relations Act 1974; (2) by failing to find that the I.L.E.A. had the power to vary the hours during which the employee was required to be at school so as to allow him to take the time necessary for his religious observance; (3) by failing to find that the I.L.E.A. were under a duty to vary the hours in the matter pursuant to section 30 of the Education Act 1944; (4) by failing to find that the provisions of section 30 of the Act of 1944 rendered the conduct of the I.L.E.A. in relation to the termination of the employee’s contract of employment unlawful and that thereby the termination of the contract of employment constituted an unfair dismissal within the provisions of Schedule 1 to the Trade Union and Labour Relations Act 1974.

The facts are stated in the judgment of Orr L.J.

Oliver Thorold for the employee. Mr. Ahmad was within his rights under section 30 of the Education Act 1944.

[SCARMAN L.J. Have you looked at article 9 of the European Convention for the Protection of Human Rights?]

Statements of principle may lead to administrative difficulties. Mr. Ahmad was entitled to say that the I.L.E.A. were repudiating his contract. Doing what is provided for by section 30 of the Act of 1944 is not a good ground for dismissal. Mr. Ahmad was unfairly dismissed within Schedule 1 to the Trade Union and Labour Relations Act 1974.

Raymond Kidwell Q.C. and Graeme Hamilton for the I.L.E.A. An employer is not concerned with the religion of a teacher except under section 30 of the Act of 1944. It is vitally important to ensure religious toleration. Section 30 is a freedom of religion clause. [Reference was made to Taylor and Saunders, The New Law of Education, 7th ed. (1971), pp. 3 and 137.] The structure of education in London does not shut a Muslim out. Mr. Ahmad has been offered a contract suitable to his religion, but he is saying that he wants a special privilege on full pay. He entered voluntarily into the contract.

“Religious opinions” is a wide expression; it covers Jehovah’s Witnesses and Mormons. As a full-time teacher Mr. Ahmad could not take time off on Fridays; take the position of a headmaster. It is accepted that section 30 was written into his contract.

[SCARMAN L.J. The Law Merchant accepted the religious requirements of different countries; see, e.g., Lindo v. Unsworth (1811) 2 Camp. 601. Do you accept that the Christian Sunday is a “day of special obligation”?]

Halsbury’s Laws of England , 4th ed., vol. 14 (1975), para. 920, shows the recognition of ” days of special observance.” The I.L.E.A. do not know the religion of teachers, so they cannot discriminate. [Reference was made to sections 25 to 29 of the Act of 1944.] “Religious worship” in section 30 refers to religious worship in the school or in the school premises. If “attending or omitting to attend religious worship” relates to something outside school, it must mean attending something outside school *39 hours. It cannot be the case that, tucked away somewhere in section 30, there is being laid down a doctrine that the sanctity of contract does not apply. If there were a full-time teacher who was a mystic he could not be allowed to take time off during school hours because he wanted to sit and contemplate.

[SCARMAN L.J. Is a Muslim in a different position from a Jew or Christian?]

The contract of employment remains sacrosanct. There are hundreds of Muslim teachers in London. Mr. Ahmad is not protesting against a penalty, but seeking a privilege. It is inconceivable that the intention of section 30 was to allow a full-time Muslim teacher time off to attend a mosque for prayer during school hours. There are great difficulties arising from the construction of the section for which Mr. Ahmad contends. Every employer in the country may be in the same position.

Mr. Ahmad was not dismissed. He was told that he could continue as a full- time teacher or that he could be on a 4 1/2 -day week basis.

Section 30 of the Act of 1944 is in entire conformity with article 9 of the European Convention. Freedom of conscience is one thing but employees have no right to be paid for what they do not do. Marshall v. Graham; Bell v. Graham [1907] 2 K.B. 112 dealt with the position of Ascension Day. The whole case turns on section 30.

Thorold in reply. Section 30 applies only to the teaching profession. The reference to “emolument” is important. One would not expect a string of qualifications to be written into section 30.

March 22, 1977.

Judgments

LORD DENNING M.R.

Mr. Ahmad is a schoolteacher. He was employed by the Inner London Education Authority (“I.L.E.A.”) as a full-time teacher. This meant that he had to attend the school and teach the children on the five days, Monday to Friday, inclusive each week, with a break each day for luncheon from 12.30 p.m. to 1.30 p.m.

But Mr. Ahmad was not only a schoolteacher. He was a devout Muslim. By his religion it was his duty every Friday to attend prayers at the nearest mosque. The time for these prayers was 1 p.m. to 2 p.m. and the mosque was about 15 to 20 minutes away. So when he went to the prayers he did not get back at 1.30 p.m. in time to teach his class. He only got back at 2.15 p.m. or 2.20 p.m. This meant that he missed about three-quarters of an hour of his teaching duty every Friday. One of the headmasters – at the school for maladjusted children – did his best to help and made arrangements to cope with his absence. But other headmasters in ordinary schools could not do so. His absence disrupted the classes too much. They could not fit it in with the rest of the work. But still he went to his Friday prayers. He said that he was entitled to do so and, notwithstanding his absences, he was entitled to full pay, just the same as if he had worked for the full five days.
There was a provision in the staff code which allowed teachers to have time off for special days in their religion when no work was to be done, such *40 as Good Friday for Christians, or the Day of Atonement for Jews, and Ramadan for Muslims. But that provision did not apply to working days, like Fridays. The other members of the staff thought it was unfair for Mr. Ahmad to have Friday afternoon off each week on full pay. So the issue was referred to the I.L.E.A. They took the view that, if he desired to take time off on Fridays for his prayers, he could only be fitted in as a part-time teacher, doing 4 1/2 days a week and being paid for 4 1/2 days: but they would see that his pension rights and so forth were not prejudiced. He was unwilling to accept this proposal. He resigned in protest. He gave as his reason: “I was exploited and humiliated by the I.L.E.A.” He put in a claim for unfair dismissal, saying that his employers’ conduct “forced me to resign.”

Now, if his resignation was brought about by the employers’ conduct, he was entitled to treat it as a dismissal (see the Trade Union and Labour Relations Act 1974, Schedule 1, paragraph 5 (2) (c)); but the question whether it was a fair or unfair dismissal would depend on whether the employers “in the circumstances … acted reasonably …”: see paragraph 6 (8) of that Schedule.
The industrial tribunal found unanimously that the employers were not being unreasonable. The Employment Appeal Tribunal [1976] I.C.R. 461 affirmed their decision, again unanimously, but gave leave to appeal.

On the appeal, Mr. Ahmad relied much on section 30 of the Education Act 1944. It was a section inserted so as to safeguard the position of teachers. It said:

“… no teacher … 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: …”

If the words were read literally without qualification, they would entitle Mr. Ahmad to take time off every Friday afternoon for his prayers without loss of pay. I cannot think this was ever intended. The school time-table was well known to Mr. Ahmad when he applied for the teaching post. It was for the usual teaching hours from Monday to Friday, inclusive. If he wished to have every Friday afternoon off for his prayers, either he ought not to have applied for this post: or he ought to have made it clear at the outset and entered into a 4 1/2 -day engagement only. This was the sensible thing for him to do. Instead he undertook full-time work without making any disclosure that he wanted Friday afternoon off for prayers.

I think that section 30 can be applied to the situation perfectly well by reading it as subject to the qualification “if the school time-table so permits.” So read, it means that he is to be entitled to attend for religious worship during the working week if it can be arranged consistently with performing his teaching duties under his contract of employment. It has been so interpreted by the great majority of Muslim teachers in our schools. They do not take time off for their prayers. Nor should Mr. Ahmad if he wants to get his full pay for a five-day week. The industrial tribunal said: *41

“… none of the other education authorities has ever received such a request from Muslim staff and the problem would seem to be unique to the applicant, Mr. Ahmad.”

I have no doubt that all headmasters will try to arrange their time-table so as to accommodate devout Muslims like Mr. Ahmad: but I do not think they should be compelled to do so, if it means disrupting the work of the school and the well-being of the pupils.

During the argument Scarman L.J. drew attention to article 9 of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, Cmd. 8969), to which this country has subscribed. It says:

“(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in worship, teaching, practice and observance. (2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”

The convention is not part of our English law, but, as I have often said, we will always have regard to it. We will do our best to see that our decisions are in conformity with it. But it is drawn in such vague terms that it can be used for all sorts of unreasonable claims and provoke all sorts of litigation. As so often happens with high-sounding principles, they have to be brought down to earth. They have to be applied in a work-a-day world. I venture to suggest that it would do the Muslim community no good – or any other minority group no good – if they were to be given preferential treatment over the great majority of the people. If it should happen that, in the name of religious freedom, they were given special privileges or advantages, it would provoke discontent, and even resentment among those with whom they work. As, indeed, it has done in this very case. and so the cause of racial integration would suffer. So, whilst upholding religious freedom to the full, I would suggest that it should be applied with caution, especially having regard to the setting in which it is sought. Applied to our educational system, I think that Mr. Ahmad’s right to “manifest his religion in practice and observance” must be subject to the rights of the education authorities under the contract and to the interests of the children whom he is paid to teach. I see nothing in the European Convention to give Mr. Ahmad any right to manifest his religion on Friday afternoons in derogation of his contract of employment: and certainly not on full pay.

I find myself in agreement with the industrial tribunal and the Employment Appeal Tribunal. I would dismiss the appeal.

ORR L.J.

The appellant in this case, Mr. Ahmad, a devout Muslim, was employed by the Inner London Education Authority (“I.L.E.A.”) from September 1, 1968, as a primary schoolteacher under a written contract of employment by which he was required to give full-time service and to *42 perform such duties as might be entrusted to him from time to time by his head teacher and which also incorporated the provisions of the I.L.E.A. staff code, paragraph 9 of which provides:

“Religious observance: teachers (other than supply teachers) in any establishment aided and maintained by the authority, 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 to 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.”

Mr. Ahmad did not before entering into the contract disclose to the I.L.E.A. that the practice of his religion would or might require that he should be absent from school for a period of time after the lunch-time break on Fridays in order to attend prayers in a mosque. From his appointment until 1974 he was employed in Division 8 of the I.L.E.A. where his respective schools were some distance away from any mosque with the result that during that period he made no request to be allowed time off for this purpose, but after his transfer in 1974 to Division 5 he found himself nearer to mosques and at his first school in that division, in which he was a supernumerary teacher, the headmaster (Mr. Foley), of his own volition and without consulting the Divisional Office of the I.L.E.A., allowed him to be absent from school for a short period after the midday break in order to attend Friday prayers at a mosque. Mr. Foley’s evidence as to this matter was that Mr. Ahmad had a teaching period after the Friday midday break but that the staff did not object to his having time off to attend the mosque and were prepared to accommodate him in this respect. If, however, there had been other Muslim teachers who wished to go to a mosque for Friday prayers the school could not have managed, and there was in fact in the school another Muslim teacher who had never made such a request.

Mr. Ahmad was next employed, still as a supernumerary teacher, at the Chisern Hall School, Bethnal Green, and there 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 midday 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.

Mr. Ahmad was next employed at the Bonner Primary School at 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.

Mr. Ahmad was next employed, still as a supernumerary teacher, at the Bethnal Green Primary School for one term from September 1974, where the headmaster, having previously consulted the Divisional Office, refused *43 his request to be allowed to attend a mosque on Fridays, but Mr. Ahmad attended the mosque in spite of this refusal, and the deputy headmaster reported that there were grumbles about this from the staff.

Finally, for the first term of 1975, the appellant was employed as a stand-in teacher at a Roman Catholic primary school in Mile End, the headmaster of which was informed by the Divisional Office that Mr. Ahmad had been refused permission to be absent during school hours on Fridays, but Mr. Ahmad, although allowed at this school to use a room for prayers, said that he would take time off on Fridays in spite of the refusal and did so.

On January 13, 1975, the I.L.E.A., in the course of a correspondence with Mr. Ahmad, had written to him saying that if he continued to take time off on Friday afternoons there would be no alternative but to take the necessary steps to vary his appointment from full-time teacher to a 4 1/2 -day week and thus give him the opportunity to attend a mosque on Fridays if he so desired. In response to this letter Mr. Ahmad wrote on January 27 that he preferred to be dismissed rather than accept part-time teaching and the I.L.E.A. replied on February 7 that they would have no alternative but to deduct salary for Friday afternoon absences, these being from 1.30 when the midday break ended until about 2.20 when he returned from the mosque. In the meantime, however, on January 29, Mr. Ahmad had given notice of resignation to take effect at the beginning of the Easter holidays, and subsequently he became re-employed on the basis of a 4 1/2 -day week, the effect of which is that he remains eligible for promotion to headmaster but that post would necessarily be a full-time one.

Mr. Ahmad on July 7, 1975, appealed to an industrial tribunal on the ground that he had been unfairly dismissed or alternatively forced to change his position from full-time teacher to a 4 1/2 -day week, and in respect of these matters he claimed re-instatement in full-time employment, and compensation. The industrial tribunal heard evidence from Mr. Ahmad himself, from Dr. Pasha, an Islamic religious leader, on his behalf, and also from the head teachers to whom I have referred and members of the I.L.E.A. staff. Dr. Pasha’s evidence was that Friday is a day on which a Muslim is by the Koran required to attend prayers and thereafter return to work. If there were three others in the school Mr. Ahmad could pray with them but if not he is required to attend a mosque unless it is too far from the school, in which case he may say his prayers in a quiet place of worship at the school. Dr. Pasha accepted that it would be advisable for a Muslim not to become involved in an employment which prevents his attending a mosque for Friday prayers but said that if he had such an employment he should convince his employer of this requirement, and he took the view that in this respect it was the duty of an employer to consider the needs of his employees. He added that outside an Islamic state there is no penalty for failure to attend the mosque but it is for the individual to reconcile his own conscience. Sickness would be accepted as a good reason for not attending, but not the nature of the employment.

Mr. Andrews, the Assistant Education Officer, gave evidence that the I.L.E.A. must have hundreds of Muslim teachers but none had ever before complained that the present problem existed. He had made inquiry about the matter from Dr. Rahman, chairman of the Muslim Education Trust, *44 and had been informed in reply that every Muslim must attend Friday congregational prayers “unless the preventive forces are beyond his control,” and Dr. Rahman had later confirmed on the telephone that the requirements of an employment would fall within that category, but in subsequent letters he did not give a specific answer to this question. Mr. Andrews had also made inquiry of education authorities which might be expected to have Muslim teachers in their employment and those which replied had said that they had not encountered this problem. In my judgment it is very surprising that they had not, if the exigencies of an employment are not accepted as sufficient reason for failing to attend a mosque for Friday prayers, but on the evidence of Dr. Pasha and in the absence of a specific answer from Dr. Rahman I think it must be taken, for the purposes of this appeal, that the exigencies of an employment do not excuse a Muslim from this obligation.

On the evidence which I have summarised the industrial tribunal dismissed the complaint and that decision was upheld on an appeal to the Employment Appeal Tribunal[1976] I.C.R. 461. Both tribunals took the view that clause 9 of the staff code, to which I have referred, could not assist Mr. Ahmad’s case since it is by its terms applicable only to teachers “who, for reasons of conscience have objections to working on a particular day in term time,” and to “days which are generally recognised in their religion as days when no work may be done.” Plainly these requirements were not satisfied in the present case since Friday, so far from being a religious holiday for Muslims, is a day on which they are enjoined, after attending prayers, to return to work; and for that reason this provision was rightly not relied on for Mr. Ahmad on the present appeal.

Before both the industrial tribunal and the Employment Appeal Tribunal, as in this court, Mr. Ahmad’s case was largely based on section 30 of the Education Act 1944, the marginal title of which is “Saving as to position of teachers ” and which omitting the proviso, which I do not find to be of any assistance in the present context, 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: …”

Both the industrial tribunal and the Employment Appeal Tribunal held that this provision has no application to the present facts on the ground that, while its object was to protect individual teachers and others employed in schools from being penalised in any way by reason of their religious beliefs or of their attending or not attending religious worship, it cannot be construed as authorising a breach of contract by a teacher in absenting himself during school hours for the purpose of attending religious worship, and in my view this construction of the section is correct *45 On behalf of Mr. Ahmad reliance was placed on the words:

“and no teacher … shall … receive any less emolument … 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: …”

which it was claimed were apt to cover the present facts, but with respect, I am unable to acept this construction. In the first place it is to be noted that the words “shall … receive any less emolument” do not appear in the earlier part of the section which applies both to teachers and to persons otherwise employed in a school and in my judgment it would be very surprising if a teacher were, but a domestic or clerical employee of a school were not, allowed to be absent during school hours without loss of pay for the purpose of attending religious worship. In the second place I do not think that the prohibition against receiving any less emolument can only have been directed to such a case as this. It is more likely, in my judgment, to have been inserted because there was thought to be a danger that a teacher might be offered a lower rate of remuneration either because he did or because he did not give religious instruction. Finally, if the provision was intended to permit a teacher to break his contract by absenting himself from school during school hours I would have expected much clearer and more specific language to be used. For these reasons I agree with the conclusion reached by both tribunals on this issue.

In the course of the appeal reference was also made to the European Convention on Human Rights, to which the United Kingdom is a party and article 9 of which provides that “Everyone has the right to freedom of thought, conscience and religion” and that such right includes freedom, either alone or in community with others and in public or private, to manifest his religion in worship, teaching. practice and observance. The right so declared is, however, expressly made subject to

“such limitations as are prescribed by law and are necessary in a democratic society … for the protection of the rights and freedoms of others.”

In my judgment this provision cannot be construed as entitling an employee to absent himself, for the purpose of religious worship, from his place of work during working hours and in breach of his contract of employment.

Nor, in my judgment, can the answer to the question raised by this appeal be that a Muslim teacher has a right to absent himself for Friday prayers if his doing so will cause only a small inconvenience in the school. This solution would have some attraction because in the present case one of the headmasters concerned, Mr. Foley, was able to accommodate Mr. Ahmad’s absence and it may be that others might have done so but for the policy adopted by the I.L.E.A. But such a solution, quite apart from the grave practical disadvantage that it would involve detailed investigation in each case as to the degree of difficulty involved, is in my judgment unacceptable in principle since absence without leave in school hours would be a breach of contract even if the inconvenience involved were slight.

Plainly in the present case the head teachers involved approached the matter with a proper respect for the religious convictions of Mr. Ahmad *46 but it is in my judgment entirely understandable that the I.L.E.A. should have been unwilling to authorise the granting of permission for Mr. Ahmad to be absent during school hours for the purpose of attending Friday prayers since to do so might well have led to similar applications by many Muslim teachers who previously had not made such application, with the result that in a number of schools there might well have been serious difficulty in maintaining the Friday afternoon programme, which in turn could have led to resentment among the non-Muslim staff of their having to assume additional burdens, and possibly to a situation in which education authorities would have been reluctant to employ more Muslim teachers. In these circumstances, I agree with both tribunals that the best way of resolving the problem would be by way of a national agreement, if such can be achieved.
For the reasons I have given I would dismiss this appeal.

SCARMAN L.J.

Mr. Ahmad, a devout Muslim, was a full-time teacher employed by the Inner London Education Authority (“I.L.E.A.”) from 1968 until he resigned in 1975. He says that resignation was forced upon him because of his religion. He had no problem until 1974, when he was transferred to a school within easy reach of a mosque. The Koran requires every Muslim man to attend a mosque for congregational prayer every Friday, unless he can bring himself within an exception specified in the Koran. Mr. Ahmad’s transfer deprived him of any excuse recognised as acceptable by Islam. He felt he had to go to the mosque, even though it meant missing 40 to 45 minutes of class-work every Friday afternoon, and even though the I.L.E.A. would not give him leave to be away from school for that period of 45 minutes. There were some negotiations, but they failed. Finally, by letter dated January 13, 1975, the I.L.E.A. issued an ultimatum. He was told that if he wished to go to the mosque, he must relinquish his full-time appointment and accept a part-time appointment – which, of course, would mean less pay and less valuable pension rights. He rejected the option of part-time work and resigned. He says that this ultimatum was one which infringed his rights under section 30 of the Education Act 1944, that he was entitled to reject it, and that in all the circumstances he was unfairly dismissed. The industrial tribunal found against him. The Employment Appeal Tribunal [1976] I.C.R. 461 ruled that the section was of no avail to him. He now appeals, with the leave of this court, and takes two points: (1) that upon the proper construction of section 30 of the Education Act 1944 the I.L.E.A. had no right to insist upon him taking a less remunerative appointment merely because he attended religious worship during school hours at a mosque outside the school. (2) That in all the circumstances he was dismissed by the I.L.E.A. and his dismissal was unfair.

The industrial tribunal found that Mr. Ahmad was not forced to resign nor was he constructively dismissed. But, as I read their decision, and particularly paragraph 13 of their reasons, they reached this finding because “on balance ” they thought “that the respondents were not being unreasonable.” Had they thought the I.L.E.A. were unreasonable in requiring Mr. Ahmad, if he wished to attend the mosque on Fridays, either to accept part-time employment or to resign, they would have concluded. as I *47 read their reasons, that he had been dismissed, and that his dismissal was unfair.

The Employment Appeal Tribunal [1976] I.C.R. 461, 464, held that it became impossible for the I.L.E.A. to continue to employ Mr. Ahmad as a full-time teacher because his two obligations, one contractual and the other religious, proved to be incompatible. The impossibility did not arise, in their judgment, by reason of his religious opinion, or of his attending religious worship: accordingly, they held section 30 of the Education Act 1944 was of no avail to him. They recognised, as I read their judgment, though they do not expressly say so, that they were giving section 30 a narrow interpretation.

The true construction of section 30 of the Education Act 1944 is at the heart of this case. It provides:

“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.”

It has, so far as I am aware, never been considered by the courts. The reasons for its 30 years of immunity from judicial interpretation are not hard to see. First, and foremost, local education authorities, like the I.L.E.A. in this case, have treated it as no more than of negative intent – forbidding discrimination on the ground of religion in the selection and employment of teachers, but not obliging them to ensure that religious minorities are represented amongst their teachers. The I.L.E.A., we have been told, have sought to comply with the section by not asking questions, the theory being that, if you do not know a man’s religion, you cannot discriminate against him on that ground. Secondly, there were until recently no substantial religious groupings in our country which fell outside the broad categories of Christian and Jew. So long as there was no discrimination between them, no problem was likely to arise. The five-day school week, of course, takes care of the Sabbath and of Sunday as days of special religious observance. But with the advent of new religious groups in our society section 30 assumes a new importance. Is it an infringement of section 30 for a local education authority to refuse a Muslim time off to go to the mosque on Friday unless he accepts less pay than a full-time teacher earns?

*48 When the section was enacted, the negative approach to its interpretation was, no doubt, sufficient. But society has changed since 1944: so also has the legal background. Religions, such as Islam and Buddhism, have substantial followings among our people. Room has to be found for teachers and pupils of the new religions in the educational system, if discrimination is to be avoided. This calls not for a policy of the blind eye but for one of understanding. The system must be made sufficiently flexible to accommodate their beliefs and their observances: otherwise, they will suffer discrimination – a consequence contrary to the spirit of section 30, whatever the letter of that law. The change in legal background is no less momentous. Since 1944 the United Kingdom has accepted international obligations designed to protect human rights and freedoms, and has enacted a series of statutes designed for the same purpose in certain critical areas of our society. These major statutes include the Trade Union and Labour Relations Act 1974, the Employment Protection Act 1975, the Sex Discrimination Act 1975, and the race relations legislation.

They were enacted after the United Kingdom had ratified the European Convention on Human Rights (signed November 1950: in force since September 3, 1953) and in the light of our obligations under the Charter of the United Nations. Today, therefore, we have to construe and apply section 30 not against the background of the law and society of 1944 but in a multi-racial society which has accepted international obligations and enacted statutes designed to eliminate discrimination on grounds of race, religion, colour or sex. Further, it is no longer possible to argue that because the international treaty obligations of the United Kingdom do not become law unless enacted by Parliament our courts pay no regard to our international obligations. They pay very serious regard to them: in particular, they will interpret statutory language and apply common law principles, wherever possible, so as to reach a conclusion consistent with our international obligations: see Salomon v. Customs and Excise Commissioners [1967] 2 Q.B. 116 (particularly per Diplock L.J. at p. 143) and Post Office v. Estuary Radio Ltd. [1968] 2 Q.B. 740.

With these general considerations in mind, I conclude that the present case, properly considered, begins but does not end with the law of contract. It ends with a very difficult problem – the application to the particular circumstances of this appellant of the new law associated with the protection of the individual’s human rights and fundamental freedoms.

Mr. Ahmad’s contract of employment is to be found in the I.L.E.A.’s letter of May 30, 1968, offering him a full-time appointment, and his written acceptance of June 2, 1968. He was required to give full-time service exclusively in the capacity of a teacher: his terms and conditions relating to hours of work were not specified, but particular provisions were included in the staff code. In effect, he was to be available for duty as a teacher during school hours. He was to be entitled to leave with pay for religious observance on days of special obligation. This was provided for by clause 9 of the staff code, which I quote:

“Religious observance: teachers (other than supply teachers) in any establishment aided and maintained by the authority who, for reasons *49 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 to leave with pay on the understanding that such leave shall be restricted to the days which are generally recognised in their religion as days when no work may be done.” It is accepted that, so far as relevant, section 30 of the Education Act 1944 was incorporated into his contract, and overrides any contractual provision inconsistent with it.

It was, therefore, a contract whereby the teacher undertook to be at school and available for teacher’s duty during school hours subject to his right to leave with pay on days recognised as of special religious obligation “when no work may be done” and subject to his rights under section 30 to be protected from discrimination on the ground of his religion. In Islam Friday is not recognised as a day when no work may be done: on the contrary, it is a man’s religious duty to work on Friday as well as to go to the mosque to pray. Clause 9 of the staff code, therefore, does not assist Mr. Ahmad, save indirectly as showing the intention of the parties to adjust their contract so far as is reasonable to accommodate the religious obligations of the teacher. Mr. Ahmad has, therefore, to rely on section 30.

The section protects certainly two classes of person: the candidate for a job, and an employed teacher. Mr. Ahmad was an employed teacher. The statutory words applicable to him are:
“… 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: …”

The I.L.E.A. recognises that the section is essentially concerned with nondiscrimination, but submits that the reference to “attending or omitting to attend religious worship” is a reference to the act of worship in school for which this part of the Education Act 1944, i.e. the set of sections 25 to 30, makes provision. Accordingly, the authority submits that the section imposes no obligation upon them to give a full-time teacher leave to attend religious worship outside school during school hours. The authority submits that it cannot be in breach of its contractual or statutory obligation merely because the appellant chose to accept a contractual obligation inconsistent with his religious duty.

The Employment Appeal Tribunal [1976] I.C.R. 461 accepted this submission. But, in my judgment, it begs the question. If section 30 means what Mr. Ahmad says it means, he made a contract which put upon the I.L.E.A. the obligation to make reasonable adjustments to his school time-table so as to avoid discrimination against him because of his Friday attendance at a mosque to worship.

The question is what the contract, which admittedly incorporates section 30, means. Is the section to be given a broad or a narrow construction? I have already referred to the narrow construction in outlining the I.L.E.A.’s submission.

*50 The broad construction, for which Mr. Ahmad contends, is as follows. The section, it is submitted, is concerned quite generally with the religious opinions and practice of the teacher: he is to suffer no financial or career disadvantage by reason of his religion. No problem arises either in respect of the teacher’s religious opinions or in respect of religious instruction. Opinions are not capable of spatial or temporal limitation. Contrariwise, it is obvious that the reference to giving religious instruction is a reference to something occurring at school in school hours. The words “by reason … of his attending or omitting to attend religious worship” are clearly also a reference to an event occurring in school hours. Are they also limited to “a single act of worship” with which the school day is to begin? See section 25 (1) of the Act. There is no such express limitation in the section. Is it, then, necessary to read it into the section?

The I.L.E.A. submits that because of its context, coming as it does as a final saving for the position of teachers at the end of a set of sections dealing with religious education in schools, the section is to be read as limited to attending, or omitting to attend worship in school. Further, the authority submits, it would be unfair on the teacher’s colleagues, who will have to stand in for him while away, to read the section otherwise.

Although I see the force of the submission, I reject it; because fundamentally a narrow construction of the section is in conflict with the developments in our society to which I have already referred – developments which are protected by the statutes to which I have also referred. A narrow construction of the section 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. In modern British society, with its elaborate statutory protection of the individual from discrimination arising from race, colour, religion or sex, and against the background of the European Convention, this is unacceptable, inconsistent with the policy of modern statute law, and almost certainly a breach of our international obligations.

Unless, therefore, the language of section 30 forces one to adopt the narrow construction, I would think it wrong to do so. But it does not: the section, linguistically speaking, can be construed broadly or narrowly. No doubt, Parliament in 1944 never addressed its mind to the problem of this case. But, if the section lends itself, as successful human rights or constitutional legislation must lend itself, to judicial interpretation in accordance with the spirit of the age, there is nothing in this point, save for the comment that Parliament by refusing to be too specific was wiser than some of us have subsequently realised. The choice of construction, while it must be exercised judicially, is ours: for the reasons which I have attempted to formulate, the decision must be in favour of the broad construction.

Construed broadly and as part of the teacher’s contract for full-time service, the section means that the teacher is not to receive less emoluments by reason only that during school hours he attends religious worship. It is immaterial whether he does so in the school or elsewhere; but the right to go to church, chapel, temple or mosque whether it be inside or outside the school, which the section confers on the teacher, has to be read into his full-time contract. In the context of such a contract the right is to be *51 exercised in such a way as not to conflict with the duty of full-time service. To give business efficacy to a contract which incorporates the section while imposing an obligation of full-time service it is necessary to imply a limitation that the period of absence be no longer than is reasonably necessary, nor so frequent or of such duration as to make it impossible for the teacher to offer full-time service. The contract (see staff code, paragraph 9) does recognise that leave with pay on days of special religious obligation is consistent with full-time service. There need, therefore, be no inconsistency in the contract providing for leave to be absent for the much shorter period reasonably required for attending religious worship.

Nor do I think there is any substance in the point that a broad construction of section 30 imposes an unfair burden upon the teacher’s colleagues. The distribution of the teaching burden depends upon the staffing and time-table arrangements made by the authority. If the authority has made no arrangements to distribute the burden fairly in the event of its Muslim teachers going to the mosque on Fridays, this must be because they have interpreted section 30 as enabling them to refuse teachers reasonable time off to attend public worship which it is their religious duty to attend. If, however, my view of section 30 is correct, all that is necessary is that the authority should make its administrative arrangements on the basis of that view. It may mean employing a few more teachers either part-time or full-time: but, when that cost is compared with the heavy expenditure already committed to the cause of non-discrimination in our society, expense would not in this context appear to be a sound reason for requiring a narrow meaning to be given to the words of the statute. The question, therefore, as to whether Mr. Ahmad broke his contract ultimately depends upon an examination of the particular circumstances of his case. Ordinarily this would be a question of fact for the industrial tribunal. But the tribunal erred in law in ruling that the question, as it put it, of reasonableness had to be determined independently of section 30. In my judgment section 30 is vital not only in considering the reasonableness of the I.L.E.A.’s ultimatum but also in determining Mr. Ahmad’s contractual rights. Once the full implications of the section in its contractual context are properly understood, I find it impossible to say that the 45 minutes’ absence from class every Friday to go to the mosque constitutes a breach of this contract. In my judgment the industrial tribunal and the appeal tribunal misconstrued the statute and misunderstood the contract.

It follows that in my judgment the letter of January 13, 1976, was one which the I.L.E.A. had no right to send: that the choice it forced upon Mr. Ahmad was tantamount to dismissal from full-time employment: that it was unfair: and that Mr. Ahmad is entitled to reinstatement or compensation. I therefore would allow the appeal, and remit the case to the industrial tribunal to determine the appropriate remedy.