Lexploria

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

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STEDMAN v. THE UNITED KINGDOM

STEDMAN v. THE UNITED KINGDOM

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