Ahmad v Inner London Education Authority
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ORR,LORD JUSTICE SCARMAN |
| Judgment Date | 22 March 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0322-1 |
| Date | 22 March 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J0322-1
The Master of The Rolls (Lord Denning)
Lord Justice Orr and
Lord Justice Scarman
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Employment Appeal Tribunal 1976 Case No, Eat 82
MR. O. THOROLD (instructed by Messrs. Hilary Fassnidge, Solicitors to Newham Rights Centre) appeared on behalf of the Appellant.
MR. R. KIDWELL. Q.C. and MR. G. HAMILTON (instructed by the Greater London Council Legal Department) appeared on behalf of the Respondents.
Mr. Ahmed is a school teacher. He was employed by the Inner Education Authority 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 lunche on from 12.30 p.m. to 1.30.p.m
But Mr. Ahmed was not only a school teacher. 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 fifteen to twenty minutes away. So when he went to the prayer 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 head masters 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. So it meant he had Friday afternoon off. But still he went to his Friday prayers. He said that he was entitled to do so and, notwithstanding his absence, 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 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. Ahmed to have Friday afternoon off each week on full pay. So the issue was referred to the Inner London Education Authority. They took the view that,if he desired to take time off on Friday for his prayers, he could only be fitted in as a part-time teacher, doing 4 ½ days a week and being paid for 4 ½ 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: "… employer's conduct forced me to resign".
Now, if his resignation was brought about by the employer's conduct, he was entitled to treat it as a dismissal - see the TradeUnion v. 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 employer 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 affirmed their decision, again, unanimously, but gave leave to appeal.
On the appeal, Mr. Ahmed 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 required to receive a lesser employmentor be deprivedor disqualified with referenceto promotion or other advantage,by reason of the fact that he does or does not give religious or by reason or his religious opinion, or by reason of his attending or omitting to attend religious worship".
If the words were read literally without qualification, they would entitle Mr. Ahmed to take time off every Friday afternoon for his prayers without loss of pay. I cannot think this wasever intended. The school time-table was well known to Mr. Ahmed 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 prayer, 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 ½ 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. Ahmed if he wants to get his full pay for a five-day week. The Tribunal said that "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. Ahmed".
I have no doubt that all headmasters will try to arrange their time-table so as to accommodate devout Muslims like Mr. Ahmed: 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 Lord Justice Scarman drew attention to Article 9 of the European Convention on Human Rights, to which this country has subscribed: it says: "(i) Everyone has the right to freedom of thought, conscience and religion: this rightincluded the 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. (ii) 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 freedom 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 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 same 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. Ahmed'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. Ahmed any right to manifest hisreligion on Friday afternoon in derogation of his contract of employment: and certainly not on full pay.
I find myself in agreement with the Tribunal and the Employment Appeal Tribunal. I would dismiss the appeal.
The appellant in this case, a devout Moslem, was employed by the Inner London Education Authority from the 1st September, 1968, as a primary school teacher under a written of contract of employment by which he was required to give full-time service and to 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 as follows: "Religious observance; teacher 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 leave with pay on the understanding that such leave shall be restricted to days which are generally recognized in their religion as days when no work may be done".
The appellant 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 Friday 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 Officer 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...
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