AS TO THE ADMISSIBILITY OF
Application No. 29107/95
by Louise STEDMAN
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 9 April 1997, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 24 August 1995 by
Louise STEDMAN against the United Kingdom and registered on 8 November
1995 under file No. 29107/95;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1963. She is
represented before the Commission by Mr. P. Diamond, a barrister
practising in London. The facts of the case, as submitted by the
applicant, may be summarised as follows.
The applicant commenced employment as an assistant manager in a
branch of a travel agency on 13 August 1990. From December 1991 the
applicant, along with other staff at the travel agency, was required
to work on Sundays. In the period from December 1991 to May 1992 the
applicant worked on 10 out of a total of 25 Sundays.
On 27 April 1992 the applicant gave the manager one month's
notice that she was no longer prepared to work on Sundays, which she
considered should be a day devoted to non commercial, family and
religious activities. The applicant's husband worked from Monday to
Friday, thus if the applicant worked on Saturday and Sunday her time
with her husband was limited. On 7 May 1992 she was told that her
contract of employment was to be amended to include Sunday as a normal
working day, on a rota basis, with no enhanced rate of pay. Employees
who worked a Sunday would receive one day off in lieu during the week
and would work a total of five days a week.
The applicant refused to sign the new contract and said that she
would continue working under her existing contract. On 4 June 1992 she
was dismissed after 22 months of employment, and paid one month's pay
in lieu of notice.
The applicant complained to the Industrial Tribunal on 28 October
1992. At a preliminary hearing on 12 July 1993, the Industrial Tribunal
unanimously rejected her application as they held that they were
without jurisdiction to hear her complaint, as she had been employed
for less than the requisite two year period.
The applicant appealed to the Employment Appeal Tribunal, on the
grounds that she had a right under Community Law not to be dismissed
for refusing to work on Sunday and that this meant that the two year
qualifying period did not apply to her. On 31 January 1994 there was
a preliminary hearing, followed by a full hearing on 1 March 1994,
before the Employment Appeal Tribunal. The Employment Appeal Tribunal
held that the applicant could not seek a remedy for unfair dismissal,
as she had not been employed for the statutory minimum period of two
years and that there was no Community right in this sphere that took
primacy over domestic law. The Tribunal also refused to make a
reference to the European Court of Justice, as requested by the
applicant. The applicant appealed to the Court of Appeal.
On 27 October 1994, Lord Justice Hoffmann recalled that shops
were permitted to open as a result of the Sunday Trading Act 1994,
which itself was passed in reply to the decision of the European Court
of Justice in the case Stoke-on-Trent City Council v. B & Q plc ([1993]
AC 900). It that case, the European Court of Justice had found that
Article 30 of the EC treaty did not apply to the prohibition on Sunday
trading in the Shops Act 1950. Lord Justice Hoffmann found no question
of Community law which could warrant a preliminary reference, and
dismissed the appeal. The other members of the Court of Appeal
agreed.
On 9 March 1995, leave to appeal to the House of Lords was
refused.
COMPLAINTS
The applicant complains that her exercise of the Christian faith,
which was manifested in her refusal to work on Sundays, resulted in the
termination of employment, and that she was unable to seek redress for
such termination in the domestic courts.
The applicant complains under Articles 6, 8, 9, 13 and 14 of the
Convention.
THE LAW
1. The applicant complains that her dismissal for refusal to work
on Sundays constituted a violation of her freedom to manifest her
religion in worship, practice and observance, as accorded by Article 9
(Art. 9) of the Convention.
Article 9 (Art. 9) of the Convention provides as follows:
"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 in 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 Commission notes that the applicant was employed and
subsequently dismissed by a private company. The respondent State is
thus not directly responsible for her dismissal.
The Commission however recalls that under Article 1 (Art. 1) of
the Convention, each Contracting States "shall secure to everyone
within [its] jurisdiction the rights and freedoms defined in ... [the]
Convention". Hence, if a violation of one of those rights and freedoms
is the result of non-observance of that obligation in the domestic
legislation, the responsibility of the State is engaged (Eur. Court HR,
Young, James and Webster judgment of 25 November 1980, Series A no. 44,
p. 20, para. 49). With specific reference to the rights of Article 9
(Art. 9) of the Convention, the State has a responsibility to "ensure
the peaceful enjoyment of the right guaranteed under Article 9
(Art. 9) to the holders of those beliefs and doctrines" (Eur. Court HR,
Otto-Preminger-Institut v. Austria judgment of 25 November 1994, Series
A no. 295 p. 18, para. 47).
The Commission must first consider whether the fact the applicant
was dismissed for refusing on religious grounds to accept a contract
which meant she would have to work on Sundays, constituted a prima
facie interference with her rights guaranteed under Article 9
(Art. 9) of the Convention. Only in circumstance where such a dismissal
would constitute such a prima facie interference with her rights under
Article 9 (Art. 9) of the Convention could the responsibility of the
State be engaged.
The Commission recalls that in Application No. 24949/94,
Dec. 3.12.96, unpublished, an employee of the Finnish State Railways
was dismissed for failing to respect his working hours on the basis
that to work after sunset on a Friday was forbidden by the Seventh-Day
Adventist Church, of which he was a member. The Commission held in
this case that the applicant was not dismissed because of his religious
convictions but for having refused to respect his working hours. In
these circumstances the Commission considered that although the refusal
was motivated by religious convictions, such a situation did not give
rise to protection under Article 9 para. 1 (Art. 9-1). Further the
Commission held in that case, that the applicant had failed to show
that he was pressured to change his religious views or prevented from
manifesting his religion or belief (inter alia he was free to resign).
Likewise in the present case the applicant was dismissed for failing
to agree to work certain hours rather than her religious belief as such
and was free to resign and did in effect resign from her employment.
The Commission thus considers that, had the applicant been
employed by the State and dismissed in similar circumstances, such
dismissal would not have amounted to an interference with her rights
under Article 9 para. 1 (Art. 9-1). A fortiori the United Kingdom
cannot be expected to have legislation that would protect employees
against such dismissals by private employers. In the absence of the
dismissal itself constituting an interference with the applicant's
rights under Article 9 (Art. 9), the fact the applicant was not able
to claim unfair dismissal before an Industrial Tribunal (who only had
jurisdiction over employees of two years standing), cannot, of itself,
constitute a breach of Article 9 (Art. 9) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant complains that the requirement to work on a Sunday
constituted an interference with her right to family life and as such
constituted a violation of Article 8 (Art. 8) of the Convention.
Article 8 para. 1 (Art. 8-1) of the Convention provides:
"1. Everyone has the right to respect for his private and
family life, his home and his correspondence."
The Commission notes that the applicant was obliged to work on
a Sunday on a rota basis rather than every Sunday and was given time
off in lieu during the week. The Commission notes that the applicant's
husband worked from Monday to Friday and thus on weekends where the
applicant was obliged to work on Saturday and Sunday her time with her
husband was limited. However, given the almost inevitable compromise
and balance between work and family commitments, particularly in
families where both partners work, the Commission does not consider
that the requirement that the applicant work a five day week to include
Sundays on a rota basis, amounted to an interference with her family
life such as to constitute a violation of Article 8 (Art. 8) of the
Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
3. The applicant complains under Article 14 (Art. 14) of the
Convention. She claims that Christians are not given the status of a
minority racial group and thus have less protection than, for example,
Muslims, in respect of religious holy days.
Article 14 (Art. 14) of the Convention provides as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin,
association with a national minority, property, birth or
other status."
On the facts of this case the applicant was dismissed for
refusing to work on a Sunday. The dismissal was not based on her
religious convictions as such, but on the fact she refused to sign a
contract which contained terms (working on a Sunday), with which she
disagreed. Nor is there any appearance on the facts as submitted by
the applicant, that she was treated in any way differently from
employees of any other religious conviction. In these circumstances
the Commission considers there is no appearance of any discriminatory
treatment of the applicant.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant complains under Article 6 (Art. 6) of the
Convention that she has been denied access to a national court in
respect of her dismissal.
Article 6 para. 1 (Art. 6-1) of the Convention provides so far
as relevant:
"1. In the determination of his civil rights ..., everyone
is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law."
The Commission notes that employees of two years standing had
access to an Industrial Tribunal to claim unfair dismissal, further in
many cases the employee would have a civil remedy for breach of
contract (it appears the applicant had no claim in contract as she was
dismissed when she refused to sign a new contract that included a term
that she work on Sundays). The Commission recalls that the right of
access to a court is not an absolute one. The State is allowed a
certain margin of appreciation. The Commission considers that
restricting access to an industrial tribunal for unfair dismissal to
employees of two years standing, pursued the legitimate aim of offering
protection to those in established employment who had given a minimum
of two years service to an employer, without burdening the employer to
the extent that dismissal within a two year "probationary period" was
likely to lead to court proceedings.
The Commission concludes that the restriction of access to an
industrial tribunal, to employees of two years standing, was not
arbitrary and did not impair the very essence of the right under
Article 6 para. 1 (Art. 6-1) of the Convention (see Eur. Court HR,
Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no.
93, p. 24, para. 57).
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. The applicant complains under Article 13 (Art. 13) of the
Convention that she has been denied an effective remedy.
Article 13 (Art. 13) of the Convention provides:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy
before a national authority notwithstanding that the
violation has been committed by persons acting in an
official capacity."
The Commission recalls that Article 13 (Art. 13) does not require
a remedy under domestic law in respect of any alleged violation of the
Convention. It only applies if the individual can be said to have an
"arguable claim" of a violation of the Convention (Eur. Court HR, Boyle
and Rice v. the United Kingdom judgment of 27 April 1988, Series A
no. 131, p. 23, para. 52).
The Commission finds that it cannot be said that this application
discloses any "arguable claim" of a violation of Convention rights.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy