Freedom of Religion and the Employment Relationship. A European Perspective by ELENA SORDA

Freedom of Religion and the Employment Relationship. A European Perspective by

ELENA SORDA

. INTRODUCTORY REMARKS

In mid-January, the European Court of Human Rights ruled on an issue which is as thorny as it is current[1]: how are we to behave if the freedom of religion of an employee comes into conflict with the requirements of the employer?

This perennial question may arise in a number of forms. Consider, for example, the

problem of food in canteens (pork is forbidden by the Jewish and Muslim faiths and bovine

meat is prohibited for Hindus, etc.) Or the weekly day of rest, or the desire to wear religious symbols when company policy imposes a dress code which prohibits it.

It is immediately clear that problems of this type involve two conflicting rights: on the one hand, the freedom of religion of the worker, and on the other, the objective requirements - related to production and free enterprise – of the employer. It thus becomes evident that there is a need to seek a balance between the different interests, but a balance which immediately collides with a legislative shortcoming. It must be noted that in the vast majority of cases, there is almost no regulation of religious matters in terms of relations between individuals, except for the establishment of freedom of religion in Constitutions and a small number of other normative acts[2]. A direct consequence of this is that, in the absence of parliamentary intervention, it is a matter for the courts to resolve conflicts by applying general principles.

In this context, a ruling from the European Court of Human Rights has been long awaited, if only for it to establish key principles that could in turn be used by Domestic Courts in the settlement of disputes.

2. FREEDOM OF RELIGION IN ECHR PRECEDENTS

Freedom of religion, thought and conscience, is expressly protected under Article 9 of the ECHR. There are two paragraphs, the first of which states that "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 teaching, practice, worship and observance". The second states that "freedom to manifest one's religion or beliefs shall be subject only to such limitations as those that have been established by law and are necessary in a democratic society in the interests of public safety, for the protection of order, health or morals, or for the protection of the rights and freedoms of others".

From the above-mentioned provision two different points emerge, one internal and the other external. The internal one[3] (freedom to believe), which hinges on the first paragraph of Article. 9, recognizes the absolute inviolability of the right to believe, not to believe, to change religion or manifest their religious convictions in public. This protection is inalienable and cannot be limited in any way.The situation is different for external protection[4] (freedom to act), connected to the second paragraph, where it speaks of the freedom to manifest one's religion: this, unlike the first, is relative and may be subject to limits and restrictions, which must in any case comply with the principle of proportionality. These limits are precisely set out in necessary measures to ensure - in a democratic society - public safety, the maintenance of public order, health or morals and the protection of the rights and freedoms of others (Pasquali Cerioli, 2011; Marchetti, 2011; Bettetini, 201; Corti, 2011; Torrez Gutiérrez, 2009: 567 ff.; Cañamares Arriba, 2005: 167 ff.).

It must then be pointed out that the case law of the Court of Human Rights concerning freedom of religion is fairly complex and over the years it has examined various forms of expression, linked, for example, to diet[5], to associations[6], symbols[7], and so on. The topic discussed here is the manifestation of religious belief within the employment relationship (For a thorough overview see also Alidadi, Foblets, Vielink, 2012). This aspect has been examined several times by the European Court, but it should immediately be recalled that, in the vast majority of cases, the applications lodged concern restrictions to the freedom of religion of civil servants, while cases are much rarer where the employee works for a private employer and accuses the State because he believes that it does not adequately guarantee his right to manifest religious belief. It must also be remembered that the Strasbourg Court has almost always declared applications lodged against this type of employer inadmissible as the relationship is of a purely private nature[8].

The case law of the ECHR in respect of employment and religious freedom has usually been oriented towards taking into account some key principles. Apart from the margin of appreciation and proportionality, the theory of freedom to resign also stands out: according to this principle, the freedom of religion of the worker is to be considered adequately protected insofar as workers have the right to choose whether or not to sign a contract of employment and to terminate it. Thus they freely choose to be bound by certain rules of conduct (uniform, working hours, etc.) imposed by the employer and therefore also accept limitations to see their

freedom to manifest religious belief, a freedom which may increase again if the worker chooses to resign (Hervieu, 2013; Oulad Chaib, 2012: 33 ff.). Applying this principle, therefore, the Court has generally rejected the appeals of workers, alleging that - given their right to resign - any limitation of religious freedom they suffered could easily be avoided by changing employment.

The principle of the margin of appreciation is well known. According to this, the Strasbourg Court, after setting out the fundamental principles and rationale to be followed in assessing a case, refers to the specific assessment of the Member States, considering them, in practice, to be the most competent judges of the scope of the rights involved and of their application, especially in the light of the legal and social beliefs that they reflect. This principle is particularly suited to the question of freedom of religion, especially when one considers the specificity and the different sensibilities of States on this matter (for example, one should consider that there may be a State religion or yet again a principle of secularism and the different ways in which it is perceived in the legal systems abiding by the Convention) [9](García Roca, 2010; Anrò, 2010: 7 ff.; Martínez Torrón, 2006).

Finally, it may be appropriate to make a brief reference to the issue of conscientious objection. This right is not codified in the European Convention, although it is usually connected in interpretation with Articles 4 (prohibition of forced labour) and 9; the only express reference concerns the possibility of exercising it with respect to compulsory military service, but only if this right is expressly provided for by the specific legal system in question[10].Indirectly, therefore, it admits calling upon conscientious objection only if it is provided for in the legal system of being referred to[11].

3. EWEIDA ET AL V. THE UK: THE APPLICANTS' ALLEGATIONS

The ruling of the European court is expressed in four different cases brought to its

attention and grouped together in a single proceeding. The first application is also the best known. It concerns Mrs Eweida, a flight attendant with British Airways who, following the introduction of a new uniform for flight and ground crew, decided to display her necklace with a cross on it. The woman had been wearing the pendant, without removing it, for years, yet the uniform previously used by the airline (with a high necked blouse) had enabled the necklace to remain hidden, and with the change of uniform, with the introduction of an open necked blouse with a kind of scarf to be worn at the discretion of the employee, in such a way that could be tucked in or tied loosely at the neck, the female employee – choosing the second option - chose to display her religious symbol.

The flight attendant, however, was reprimanded by her superiors who pointed out that according to the protocol regarding the company dress code, no religious symbols were permitted. This prohibition was meant to show the secular nature of the company, so as not to offend any customer, regardless of their religious or atheistic convictions. The same protocol, however, also provided for the possibility of disregarding the aforementioned regulation if the employee was required to wear certain items in virtue of specific obligations of a religious nature. Hence, in the past, exceptions had been made for the turbans and the silver bracelets worn by Sikhs, and the Muslim hijab. Upon examination of the employee’s claim, however, the airline reached a decision not to grant special permission to the flight attendant since, unlike other religions, the Christian faith does not require its followers to wear a cross. The woman, however, maintained her position, did not remove the necklace and did not accept any alternative solution proposed by the employer[12], with the result that she was removed from her post and payment of her salary was suspended.

The case of the flight attendant caused an uproar among the British media and public, so that in the space of just two months, British Airways had to change their policy on staff uniforms, reinstating Mrs Eweida, but they refused to pay any compensation for the period that her salary had been suspended, as the company had acted in accordance with the regulations in force at the time.

The second case also concerns the conflict between uniforms and religious symbols. More precisely, a Mrs Chaplin, a nurse with an English hospital, was forbidden from wearing a necklace with a cross that she had worn for years due to a change of uniform that in the past had consisted of a shirt with a round neck so that now it had a "V-neck". The hospital’s prohibition was due to health requirements, as any piece of jewellery or accessory - also forbidden – may have been a source of harm to patients, causing them injury or infecting them due to coming into contact with damaged tissue[13]. As in the case of the airline, here too the hospital provided the opportunity for employees with special clothing requirements related to their faith, to make an application, which, in the case of the nurse, was rejected. The health regulations were applied in the same way to employees of other religions, so for example, in the past two Sikh nurses had been forbidden to wear the kirpan; another employee had not been allowed to wear a cross, and practising female Muslims were required to wear a close-fitted veil, sports style, similar to a ski mask. Also in this case, as in the previous one, the woman refused to accept the alternative proposals suggested by the employer, such as, for example, the possibility of having a collared shirt (with the necklace worn underneath) to wear beneath the uniform, or placing a small cross on her identification badge.

The third applicant is Mrs Ladele, a Catholic as the others applicants, an official of the London Borough of Islington in the public records office[14]. When the Civil Partnership Act (2005) came into force in the UK, which made it possible to register relations between homosexuals, the Islington offices decided that all employees assigned to public records (responsible for births, deaths and weddings) had also to handle the registration of the new civil unions. It should be noted, however, that this choice was not compulsory, since the law only required that there be a sufficient number of employees to fulfil all the necessary formalities. Mrs Ladele, however, refused to preside over civil ceremonies and register unions between persons of the same sex as this would go against her religious beliefs. The applicant’s appeal citing conscientious objection was not accepted by the public institution as it deemed such behaviour to be in conflict with the specific code of conduct of the institution, whose aim is to ensure equal dignity and equal treatment to employees and users, regardless of age, gender, faith, or sexual orientation. The regulation also provides that if employees act to the detriment of these ideals of tolerance and dignity, they may be subject to penalties. As a result of disciplinary proceedings the woman was exempted from celebrating civil union ceremonies (both homosexual and heterosexual), but would still have to manage the registers and fulfil any other administrative formalities related to the these unions. The employee did not accept the proposals and was dismissed.

The fourth and last case concerns Mr McFarlane, also a Catholic, employed as a counsellor at a marriage guidance centre. It should be noted that the rules of the centre not only state that it offers assistance to every kind of couple, with no prejudice, but also that therapists may not choose which couples to work with and that they are assigned on a wholly random basis. Initially, while not endorsing gay relationships because of his religious convictions, however, the applicant had fulfilled his duties having become persuaded that to provide professional support he did not necessarily have to approve of homosexual behaviour. The problem, however, arose when he was asked to offer advice to a gay couple not only to give psychological support (as he had done in the past, without problems), but rather to assist them in sexual matters. The man realized that his faith led him to disapprove of sexual relations between persons of the same sex to the extent that it became impossible for him to carry out his job. After a disciplinary procedure, during which it was not possible to reconcile the conflicting needs, Mr McFarlane was dismissed for serious breach of contract.

As can readily be inferred from this preliminary study, it emerges that the issue at hand touches on two main themes: first, the problem of conflict between religious symbols and uniforms, and second, conscientious objection in relation to job performance.

4. THE COURT’S REASONING

The European Court, after a brief survey of the (meagre) UK legislation the freedom of religion, briefly noted that in countries adhering to the ECHR, this matter has not been developed in great depth and there are few, if any, norms on religious symbols in the workplace.

The provisions of the European Convention taken into account for the purposes of the decision are Articles 9 and 14[15]. The former acknowledges the freedom of religion and to express beliefs as long as to do so remains within statutory limits. It also states that in order for the law to be applied, the conduct in question must be closely connected with the religion itself and consequently two observations would need to be made: firstly, it is necessary to assess the depth and sincerity of the beliefs of the claimant[16], and secondly all religion-related activities must be considered deserving of protection, regardless of whether they constitute a binding religious precept[17] (Peroni, 2013). The court then examines the aforementioned freedom to resign and observes that, in the past, the Court of Human Rights had had recourse to it, but that it is more appropriate not to consider it as some sort of necessary stage in the process of resolving a dispute, but as a factor to be taken into account within a more complex and detailed framework, where the principle of proportionality in comparing the applicant's rights and those of the defendant must be applied[18] (Peroni, 2013).

The margin of appreciation afforded to Member States also needs to be considered[19]. The task of Strasbourg is to evaluate whether the measures adopted by them are proportionate to the rights claimed. From this perspective, the way the Court addresses the issue of the relationship between public and private work is interesting: it emphasises that although in the first and fourth cases the responsibility of the State is less because it is not directly involved in the employment relationship, also in the question of the freedom of religion, general principles can be drawn which can be applied to all parties (public or private organizations), because in effect they involve society as a whole.

The Court moves on to examine article 14 and the related case law, recalling that the provision prohibits all forms of discrimination (direct or indirect) that would prevent the exercise of the rights and freedoms guaranteed by the Convention and states that such protection does not exist independently, but only in relation to other rights and freedoms to which it is directly linked. It then goes on to examine the four cases submitted to its scrutiny.

Before looking at the judgments however, is should be noted that in all four cases, the Court recognised that the limits imposed by the employers had constituted interference in the applicants' freedom of religion and recalled that its task was to ascertain whether such restrictions were legitimate or not.

The first appeal was the only one to be upheld[20]. The European court notes that the desire of Mrs Eweida to wear a cross was undoubtedly sincere and that it is irrelevant that wearing this symbol is not a requirement of Catholicism. It also points out that since the employment relationship was a private one, the State can be held responsible for the violation of the applicant’s freedom of religion only to the extent that it had not guaranteed appropriate

means to make a claim and had failed to balance the rights involved[21].

The Court argues that the need for British Airways to protect a certain image (religiously neutral) was legitimate, but weighed less than the applicant’s need to wear the cross. Firstly, the symbol was small and could not have affected the professional image of the employee, and secondly the company had already allowed other workers to wear religious clothing (such as turbans or hijabs) and it had not been shown that this had been economically detrimental to the company in any way, and that lastly, the fact that a few months later, British Airways had decided to change the dress code - allowing symbols to be worn - is indicative that the neutral appearance of the employees was not of crucial importance for the company. In short, as it is in no way proven in that religious symbols are in any wise detrimental to the airline, the prohibition it had imposed must be considered disproportionate to the objective pursued. The Court of Human Rights therefore considers unlawful and unreasonable this restriction on the applicant’s religious freedom[22].

Mrs Chaplin, the second applicant, saw her application rejected because, in the balance between her need for religious expression and the hygienic requirements of the hospital, the latter prevailed[23]. The Court observes that the dress code was adopted by the hospital in accordance with the directives issued by the Ministry of Health and that their purpose was to protect patients and reduce the risk of infection or injury; it observes that the hospital had been consistent in applying the Regulation, since also other persons of a religious persuasion had been required to change their dress code for the sake of their health requirements. Having therefore to arrive at a balance between the needs of the applicant and the clinical requirements of the hospital, it was deemed just to guarantee greater safeguards to the latter and the court also pointed out public health is one of the explicit limits to the manifestation of religious freedom enshrined in 9.2 ECHR. In concluding its reasoning, the Court also notes that the most competent authority in matters of safeguarding public health is the national health authority and that, for this reason, they should be given a wider margin of appreciation in evaluating the case in point.

The situation is different too for the employee of the public records office[24]. In this

case, the Court of Human Rights argues that the dismissal is legitimate because in balancing the rights of a homosexual couple to have their union registered and that of the employee to manifest her religious beliefs by refusing to celebrate and formalize the relationship - the UK may choose to prioritize the first. More precisely, the Court recalls that in its case law it has repeatedly emphasised the duty not to discriminate against gay couples and to try to ensure their rights as for heterosexual couples, while stressing that countries have the utmost margin of appreciation in this area, being able to choose which legal recognition to give them[25]. It therefore considered that the aim pursued by the British authorities was legitimate, in its intention to sanction discrimination demonstrated by the action of the employee. Examining the proportionality of the sanction, on the one hand the Court highlighted that the religious convictions of the woman were so strong as to endure serious consequences, such as loss of employment, but on the other hand noted the goal of non-discrimination set by the office, and also that when the woman had accepted employment, she had not shown her distaste for homosexual couples (and thus from a certain point of view, her conscientious objection came late). Since in this case the protection of separate rights protected by the Convention (faith and non-discrimination) was at stake, the ECHR felt the need to grant the maximum margin of appreciation to the National Courts and stated that, in this case, the British judgment had been in line with this policy (Smet, 2013).

The fourth and last case was also rejected by the Court of Human Rights, which affirmed that the applicant had freely chosen to attend a course and work for a company (devoted to the psychological and sexual therapy for couples) which had always claimed to welcome any kind of union and did not allow therapists to choose their clients[26]. In this case, there is a brief reference to the freedom to resign, pointing out that this must be taken into account when balancing conflicting rights although it is not the sole determinant. The Court observes that in this case the employer had dismissed the employee in the interests of ensuring full equality among its clients, opposing all forms of discrimination. For this reason, as noted in the previous case, when it is necessary to choose between two equally protected rights, the National Courts have the maximum margin of appreciation, a faculty, which, in this case, had been used in a lawful manner.

5. SOME OBSERVATIONS ON THE MOTIVATIONS OF THE COURT IN STRASBOURG

The reasoning used by the Court of Human Rights in the four cases under consideration does not always appear entirely convincing. Although the judgment reached is comprehensible, it might be noted that it represents in some way a "missed opportunity". Firstly, reference to the size of the religious symbol of the applicant seems a weak point: it is difficult to understand, in fact, how the size of the pendant may be relevant, considering that, as mentioned several times, on other occasions garments such as the turban or the hijab – certainly not "discreet" – had been allowed by the airline. Second, basing its opinion on the fact that the absence of religious symbols was not particularly relevant to the company, the Court has not however identified a criterion that could be used in cases where the employer is less amenable than British Airways and does not change its dress code policy over time. Of course, it emphasizes several times that in reaching a decision, the principle of proportionality (a criterion of interpretation also recognized in domestic case law) must be taken into account and the Court was not required on this occasion to express its views on other hypothetical situations, but in so acting may be said to have lost an opportunity to express a clearer guiding principle that might have been a useful guide to the work of the national courts. It must also be mentioned that the British Airways case is all the more peculiar given that, within a few months, the company agreed to change its dress code, while usually the objective requirements of the employer lead him to be less flexible on these issues.

If the solution reached by the European judge in the case of the nurse is the most pacific, considering the wording of Article. 9.2 of the Convention and the balancing of conflicting requirements (religious for the applicant and public health regarding the hospital), the situation is different in the third and fourth case, both of which relate to conscientious objection.

There are numerous non-convincing points in the grounds regarding the appeal by Mrs Ladele. Firstly, it should be noted that the Court only hinted in the reconstruction of the facts that, when the Civil Partnership Act came into force, some municipalities had allowed employees to exercise conscientious objection (which, therefore, would have been eligible in this case). In the grounds, the Court does not take into consideration that according to the text of the law, local authorities were not required to extend to all employees the competence to register civil partnerships, so that Ladele could have been relieved from their duties without breaking the law. Reference to the delay in expressing her conscientious objection also seems out of place, considering the fact that when she was hired, the Civil Partnership Act had not yet entered into force: what therefore would she have objected to? Indeed, her objection was timely when the new legislation came into force, as is also observed in the reconstruction of the facts. It should also be noted that recognising the right of this civil servant to object did not prejudice in any way the right of homosexual couples to formalize their union, considering that she was not the only employee at the office and that she could have continued to perform other functions (registering births, deaths and marriages), which she had been doing before. The public service offered would not have been, in fact, affected.

Yet another point must be taken into consideration: it is stated several times that the aim of the office is to achieve full equality among people through the acceptance of any opinion, belief, race, ethnicity, sexual orientation, etc. However, in rejecting the objection of conscience expressed by Ladele, it was in fact violating the same principle that it was trying so hard to protect. It would have been different, it must be emphasised, if the employee had been the only officer and if her refusal could have undermined the benefit available to the user, but in this case it was not. The solution proposed by the European court therefore does not seem satisfactory.

In the McFarlane case, although the Strasbourg judgment is satisfactory, the same cannot be said for the logic followed in reaching it. The whole question is here shifted to the matter of the conflict between the freedom of religion of the employee and the right of clients to non-discrimination. However it would have been more appropriate to consider not so much the rights of the latter, as that of the employer to see that the services envisaged by the contract of employment with the employee were provided. It should be noted that, according to the ratio of the ECHR, an employee can be dismissed only where a fundamental right of others (here identified as homosexuals) is at stake, but what would happen if the conscientious objection rested on different, but not equally protected, reasons? Consider, for example, the refusal to carry out assisted procreation or a certain service because it had been scheduled at a time or on a day which were not available due to religious constraints.[27] In the opinion of the writer, it would have been appropriate to focus more on the fact that Mr McFarlane was perfectly aware of the kind of services he was required to provide, especially as he had attended a course on the subject. In addition, unlike the Ladele case, where assigning her other tasks would not have affected the service due to the public, in this case the very core of the service was precisely to offer psychological and sexual counselling to heterosexual and homosexual couples, without the employee being able to choose with whom he worked. In short, refusal to provide the service in this context amounts to refusing to fulfil a contractual obligation that can not be substituted for, and thus to undermine the employment relationship itself. In so doing, the Court has sought to strengthen the protection of same-sex couples, but, in fact, has prejudiced the protection of the interests of the employer and his/her right to obtain the agreed performance. In the opinion of the writer, then, unlike the other appeals, the last case is formative for a solution through deduction from "freedom to resign."

A similar reasoning could be applied to the third applicant. As we have seen, the Court raises the question of discrimination against homosexuals and their right to receive a public service, but perhaps it would be more correct to insert another element in the balance, i.e., the nature of the breach commonly attributed to the employee. In doing so, greater weight could have been given to the fact that Ladele had been hired at the time to perform distinct tasks, as well as the fact that despite recognising her conscientious objection she could have continued to perform necessary functions, with no detriment to the 'usefulness of her performance, or impairing the service offered to couples seeking a civil union. Conversely, applying the reasoning proposed by Strasbourg, it would be difficult to offer adequate protection to the interests of the employer in the event that conscientious objection arose from issues that do not enjoy such strong protection as the principle of non-discrimination.

6. CONCLUSIONS

In conclusion, it is possible to make some general observations in respect to what we have seen until now.

In first place is the use of the margin of appreciation. While there is no doubt that freedom of religion is one of the areas in which it may be called upon, in some of these cases

(more precisely, the third and fourth) it seems that it has been over-used: the Court in fact failed to make a compelling argument able to adequately take into account all the facts (Overman, 2013; Sorda, 2013).

Secondly, the willingness of the Court of Human Rights to move beyond the theory of

freedom to resign is very clear. It is called upon, and in one case inferred, but always emphasizing that it must be only one of the elements in the reasoning. While this position seems commendable and is probably also related to the desire to temper the use of a principle that had been transposed too lightly in some National Courts, where it could have called upon it with greater strength and courage (as in the case of McFarlane), it avoided doing so.

In short, even if it seems that the prudent deduction of principles such as the margin of appreciation or the freedom to resign appears to be correct, nonetheless, it should be noted that the European Court has missed an important opportunity to single out other key principles for the implementation of the Convention; principles whose importance is certainly not secondary, given the centrality of the theme in question and the shortage of specific legislation at national level.

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[1] Judgment Eweida and Others v. the United Kingdom (applications no. 48420/10, 59842/10, 51671/10 and 36516/10, judged 15 January, 2013). [2] The Strasbourg Court takes this into consideration in the judgment at hand (para. 47) [3] Cf. inter alia C. v. the United Kingdom (decision n. 10358/83) and V. v. the Netherlands (decision n. 10678/83). [4] The famous Kokkinakis v. Greece judgment of 5 May 1993 is emblematic. [5] Cf. inter alia Jewish Liturgical Association Cha’are Shalom Ve Tsedek v. France (application no. 27417/95, judged 27 June 2000). [6] Cf, for example, Refah Partisi and Others v. Turkey (13 February 2003). [7] Consider the recent Lautsi v. Italy (appeal n. 30814/06, judgment of 18 March 2011). [8] In this sense, by way of example, see Stedman v. the United Kingdom (application no. 29107/1995) concerning an employee of a travel agency called to work on Sundays. [9] On this matter Konttinen v. Finland (3 December 1996) in emblematic. See also ma Stedman v. the UK, mentioned before. [10] Art. 4.3, lett. b). [11] On the matter of conscientious objection, it should be noted that most of the cases concerned the applicants' refusal to perform compulsory military service. The response from Strasbourg varies depending on the legal order, and focuses on the proportionality of the reaction of the State with respect to the penalty envisaged depending on the choice of the objector. In this sense, see, among others Grandrath v. Germany (application no. 2299/64), X v. Austria (application no. 5591/72), X v. Germany (application no. 7705/76), N v. Sweeden (application no. 10410/83), v Ülke. Turkey (application no. 39437/98, decided on January 24, 2006), v. Bayatyan. Armenia (Application no. 23459/03, decided on July 7, 2011) and v Sayda. Turkey (application no. 42730/05, decided on June 12, 2012). [12] She had been offered the chance to do work of an administrative nature, which did not involve contact with the public and that did not require her to wear the company’s uniform. [13] More precisely, the dress code allowed to wear a small, plain ring and a pair of discreet earrings, on the other hand, necklaces of any kind were prohibited (to reduce the risk of injuries when handling patients). [14] Public offices in the suburb of Islington, in London. [15] Paras. 79 et seq. [16] In this sense, see Jakóbski v. Poland (application no. 18429/06, decided on 7 December 2010). [17] In this sense, see Jewish Liturgical Association Cha'are Shalom Ve Tsedek v. France (27 June 2000) and Leyla Shain v. Turkey (10 November 2005). [18] Para. 83. [19] Para. 84. [20] Para. 89-95. [21] Para. 91 ff. [22] Paras. 94 and 95. [23] Paras. 96-101. [24] Paras. 102-106. Again, as in the second, the employer was the goverment, so there is no problem of the legitimacy of the ECHR. [25] Among others, he cites Schalk and Kopf v. Austria. [26] Par 107-110. Again, as in the first, the employment relationship is governed by private law, so the State's liability is limited to guaranteeing adequate instruments for the protection of the freedom of religion. [27] Consider Stedman v. the United Kingdom (mentioned before) which, for the reasons mentioned above and the temperament of the principle of "freedom to resign" could now have had a separate solution.