Information Note on the Court’s case-law 238

March 2020

Grimmark v. Sweden (dec.) - 43726/17

Decision 11.2.2020

Article 9

Article 9-1

Freedom of religion

Midwife denied employment because of her religion-motivated refusal to assist in abortions: inadmissible

Article 14

Discrimination

Midwife denied employment because of her religion-motivated refusal to assist in abortions: inadmissible

Facts – The applican t, a nurse employed by the local county council, was granted leave to train as a midwife. At the end of her training, she received her midwife’s licence. During her studies, she applied for vacant positions in several hospitals but was not offered employme nt, as she refused to perform abortions. She brought unsuccessful compensation proceedings before the domestic courts.

Law

Article 9: The applicant’s refusal to assist in abortions due to her religious faith and conscience constituted a manifestation of her religion. The interference was prescribed by law: under Swedish law, an employee was under a duty to perform all work dut ies given to him or her. It had pursued the legitimate aim of protecting the health of women seeking an abortion. It had also been necessary in a democratic society:

Sweden provided nationwide abortion services and therefore had a positive obligation to or ganise its health system in a way as to ensure that the effective exercise of freedom of conscience of health professionals in the professional context did not prevent the provision of such services.

The requirement that all midwives should be able to perf orm all duties inherent to the vacant posts was not disproportionate or unjustified. Employers had, under Swedish law, great flexibility in deciding how work was to be organised and the right to request that employees performed all duties inherent to the p ost. When concluding an employment contract, employees inherently accepted those duties.

In the present case, the applicant had voluntarily chosen to become a midwife and apply for vacant posts while knowing that that would mean assisting also in abortion cases.

Moreover, as a result of the refusals, the applicant had not been left unemployed: she had been able to continue to work as a nurse at another hospital, where she had a post.

Furthermore, the domestic courts had carefully balanced the different rig hts against each other and provided detailed conclusions which were based on sufficient and relevant reasoning. A proper balance had thus been struck between the different, competing interests.

Conclusion : inadmissible (manifestly ill-founded).

Article 14 in conjuction with Article 9: The applicant had argued that because of her religious beliefs and her public stand on abortion, she had been treated less favourably than midwives who were willing to perform all duties inherent to the vacant posts , including abortions. In the eye of the Court, however, her situation and that of the latter were not sufficiently similar to be compared with each other.

Conclusion : inadmissible (manifestly ill-founded).

(See also Steen v. Sweden (dec.), 62309/17 , 11 February 2020)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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