The perennial issue of precisely what kinds of religious manifestation are protected by Article 9 ECHR has been in the news again.
In Hodson v Secretary of State for Work and Pensions  UT CJSA/3466/2013 (unreported) the appellant, Mr Graham Hodson, a former communications supervisor with Cheshire Police, claimed Jobseeker’s Allowance in August 2012 after his student-related job at the University of Chester came to an end. On 25 September he was given a written instruction requiring him to attend an interview with a personal adviser on 27 September but he informed the official who had handed him the written instruction that he would be unable to attend because, instead, he would be at a service of Holy Communion at Chester Cathedral. He asked if the interview could be rearranged but was refused – and he did not attend the interview. As a result, he was treated as “not having made a claim for Jobseeker’s Allowance such that he would not be paid the benefit from 26 September 2012” under Regulation 12(2)(a) of the Social Security (Jobcentre Plus Interviews) Regulations 2002 [para 2].
He appealed to the First-tier Tribunal (F-tT) which, after an oral hearing in April 2013, dismissed his appeal, concluding that he was not entitled to a backdated payment of Jobseeker’s Allowance from 4 October 2010 to 10 October 2010. The F-tT’s reasons were, in part, that while Mr Hodson
“… preferred to attend a service of Holy Communion each Thursday, the day of his interview, [he] agreed in evidence today that, if offered employment, he would make alternative arrangements to attend Holy Communion at another time or day and he appreciated that an employer would expect him to be in his workplace on Thursdays. There are daily services of Holy Communion that he could attend. [He] agreed that he could make alternative arrangements if required to do so. The Tribunal do not accept that attendance at that particular service could be regarded as an established custom and practice of the religion to which the appellant belonged. [He] attended services of Holy Communion several times throughout the week but attendance on Thursday was a preference rather than an established practice or custom” [F-tT para 7].
He appealed to the Upper Tribunal on the grounds, inter alia, that he had had good cause for failing to attend the interview, that the F-tT had not properly considered his reasons for having to attend the particular service that he wished to attend and that the F-tT’s decision had infringed his rights under Article 9 ECHR (freedom of thought, conscience and religion).
The Upper Tribunal dismissed his appeal. Tribunal Judge Hemingway noted that under Regulation 14 of the Security (Jobcentre Plus Interviews) Regulations 2002, matters to be taken into account in determining whether a person had shown good cause for failure to take part in an interview included–
“(d) that the established customs and practices of the religion to which the person belongs prevented him attending on that day or at that time;” [para 9].
However, on that and on the related Article 9 point he concluded that:
“… the decision that the appellant had to attend the interview on its scheduled date is not something which prevents him from manifesting his reliagion in worship. It simply meant he could not do so by attending a particular service on a particular day. It did not prevent him attending similar services on different days. The F-tT, against that background, did not err in law in failing to address Article 9 and, in any event, if it had addressed it it would inevitably have concluded that the appellant could not successfully rely upon it. The appellant was not prevented from pursuing the activities the Article is intended to protect and the inability to be able to attend a single specific service on a specific date does not, of itself, fall within its scope” [para 13].
Moreover, as to Mr Hodson’s contention that the F-tT had erred in failing to appreciate that the particular service he wished to attend was of special and particular significance,
“… it is noted in the record of proceedings that the appellant did indicate to the F-tT that if he was offered full-time employment he would make other arrangements to attend communion. In light of that evidence it was open to the F-tT to decide, as it did, that he would have been able to attend a similar Holy Communion service on a different day. Thus, it was open to it to conclude that the established customs and practices of his religion did not prevent him from attending an interview on that particular day” [para 15].
What is not evident from the judgment – but becomes apparent on reading Gavin Drake’s report in the Church Times – is that the disputed service was Chester Cathedral’s weekly Book of Common Prayer Holy Communion. Frank Field MP, vice-president of the Prayer Book Society, said that the decision beggared belief, while Mr Hodson’s reported reaction was that
“… there would have been no business impediment for the Jobcentre to allow me to have a different interview for me to go ahead and worship at a BCP communion … I don’t think it would have been a big deal for me to have gone to a 30-minute communion service on a day when they could have quite reasonably rescheduled my personal adviser interview”.
It’s difficult not to have a degree of sympathy for Mr Hodson: the case has all the indications of an over-zealous official sticking rigidly to the rules. But whether or not Tribunal Judge Hemingway got it wrong is another matter entirely.
In Eweida and Ors v United Kingdom  ECHR 37 the European Court of Human Rights defined the terms on which a particular activity attracted the protection of Article 9 like this:
“In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question” [para 82:emphasis added].
On the facts, how central is attendance at BCP Holy Communion to an expression of Anglican Christianity? The BCP itself envisaged thrice-yearly communion as the minimum requirement: And note, that every Parishioner shall communicate at the least three times in the year, of which Easter to be one. And, as noted above, Mr Hodson himself had agreed in evidence that “… if offered employment, he would make alternative arrangements to attend Holy Communion at another time or day…” [para 7]. In so agreeing he destroyed his own argument: if he was prepared to give up BCP Holy Communion on Thursdays once he was working, why was he not prepared to give it up on a single occasion in order to attend a Jobcentre interview?
However irritating and jobsworthy the DWP official’s original decision may have been, it is difficult to see how the Upper Tribunal could have come to any different decision on the facts. Regular attendance at Holy Communion is obviously a core part of Anglican belief and practice: regular attendance at Holy Communion according to the 1662 rite is surely not – even allowing for the widening of the area of manifestation that is protected by Article 9 as a result of the judgment in Eweida.
With thanks to Gavin Drake for providing a copy of the UTT’s judgment.