Urgent Commons question on CJEU rulings in Achbita and Bougnaoui

Visible Religious Symbols: European Court Ruling

This morning, 15 March, Mrs Maria Miller (Basingstoke) (Con) asked the Parliamentary Under-Secretary of State for Women and Equalities “if she will make a statement on the recent Court of Justice of the European Union ruling allowing employers to ban workers from wearing religious dress and symbols in the workplace”. Following is a quick summary of the most important points.

The Parliamentary Under-Secretary of State for Women and Equalities (Caroline Dinenage) replied as follows:

“The Government are completely opposed to discrimination, including on grounds of gender or religion, or both. It is the right of all women to choose how they dress, and we do not believe that the judgments change that. Exactly the same legal protections apply today as applied before the rulings. In both the Achbita case and the Bougnaoui case, the judgment was that there was no direct discrimination, but that there was some discrimination. A rule is directly discriminatory if it treats someone less favourably because of their sex, race, religion or whatever. A rule is indirectly discriminatory if, on the face of it, it treats everyone the same, but some people, because of their race, religion, sex and so on, find it harder to comply than others do. Indirect discrimination may be justifiable if an employer is acting in a proportionate manner to achieve a legitimate aim.

The judgments confirm the existing long-standing position of EU and domestic law that an employer’s dress code, where it applies to and is applied in the same way to all employees, may be justifiable if the employer can show legitimate and proportionate grounds for it. Various cases show that such an employer needs to be prepared to justify those grounds in front of a court or tribunal if need be. That will remain the case and that is the case with these judgments, which will now revert to the domestic courts.

I am aware of some concern that the judgments potentially conflict with the judgments of the European Court of Human Rights, particularly in the case of Nadia Eweida, the British Airways stewardess banned from wearing a small crucifix but whose case the ECHR upheld. We do not believe that the different judgments are in conflict. Both the CJEU and the ECHR were trying to assess the balance in each case between the religious needs of the employee and the needs of the employer. In Eweida, the assessment favoured the employee; in another ECHR case, and also in the Achbita case, the assessment favoured the employer. We will still take action to ensure that the current legal position is set out. We will be working with the Equality and Human Rights Commission to update guidance for employers on dealing with religion or belief in the workplace. The guidance will be revised to take account of the CJEU judgments, too. We will make it absolutely clear to all concerned that the Equality Act 2010 and the rights of women and religious employees remain unchanged.

Like any judgment of the CJEU, for the time being, Achbita and Bougnaoui need to be taken into account by domestic courts and tribunals as they consider future cases. The law is clear and remains unchanged. However, because of our absolute commitment to ensuring that discrimination and prejudice are never encouraged or sanctioned, we will keep the issue under very close review.”

In reply to Mrs Miller’s supplementary question, she went on to add that it was and remained unlawful to discriminate directly against someone because of religion, or to create spurious rules that would prevent someone from wearing religious clothing or jewellery. She noted that employers could enforce a dress code, but it had to be for proportionate and legitimate reasons and apply equally to all employees. An employer who wanted a neutral dress code with no religious symbols on display had to apply it equally to all employees and all religions.

Dress codes were a matter for individual employers and would depend on the particular type of work involved, the environment and on safety considerations above all. She noted that the CJEU had found that the facts of two cases would constitute indirect discrimination and had referred them back to the national courts to consider whether, based on the specifics, they would be unlawful:

“The UK’s legal position has not changed. The EHRC has already published guidance for employers on religion and belief in the workplace, and we will work with it to update that guidance to take account of these rulings and to carefully explain how they should be interpreted in UK workplaces. But I must reiterate that this Government are absolutely committed to supporting people into work whatever their background, making Britain a country that works for everyone and not just the privileged few.”

Shabana Mahmood (Birmingham, Ladywood) (Lab) said that the judgments sent an “appalling message” to faith communities:

“many visibly religious people at work today will feel more scrutinised and more insecure as a result. The ruling also creates a lower threshold for religious freedom than we enjoy under UK legislation. Many thousands of people in my constituency are affected; they need a clear and continuing signal from the Government that they will support our national legal settlement. I am grateful for what the Minister has already said on that, but how will she and the Government monitor the ruling’s impact on employees currently in the workplace? What steps will she take to prevent any further marginalisation of visibly religious people in the workplace?”

Ms Dinenage replied that she was “absolutely right” to raise that issue:

“The Government believe that people need to be able to feel strong in their religious identities. We have to continue to ensure that the voices of people of faith are heard in Government. We should recognise that people are completely free to follow their faith. We want a society that treats people equally and with respect, so we will always keep this matter under review and take the necessary action if and when it becomes apparent that we need to.”

In response to Yasmin Qureshi (Bolton South East) (Lab), Ms Dinenage added that domestic equality legislation was very clear: employers did not need to change any legitimate policies on dress code in the workplace, but it was vital that both employers and employees understood what the law allowed them to do. The Government did not want employers mistakenly thinking that the rulings gave them any authority to sack public-facing staff who wore headscarves or any other religious symbols. Those protections were already clear in domestic law, and the Government would always make sure that they were “most strongly enforced”.

Cite this article as: Frank Cranmer, "Urgent Commons question on CJEU rulings in Achbita and Bougnaoui" in Law & Religion UK, 15 March 2017, https://lawandreligionuk.com/2017/03/15/urgent-commons-question-on-cjeu-rulings-in-achbita-and-bougnaoui/


5 thoughts on “Urgent Commons question on CJEU rulings in Achbita and Bougnaoui

  1. Having read both ECJ Judgments (unlike most commentators on them) I cannot see what all the fuss is about. The decisions leave the legal position little different from what it was after Eweida, dress codes have to be neutral and apply equally to all Religions, Philiosophies and Politics. Also the ECJ in the Bougnaoui case decided that an employee could not be told to remove her hijab merely because a customer didn’t like it.

  2. The fuss, as the Bishop of Leeds explained, is the dubious assumption that a ban on all religion is neutral, as though irreligion (or secularism) is a neutral position. This is the founding myth of the French republic.

    It also seems not to take sufficient account of the fundamental right to freedom of religion and conscience. Given this, how can a ban on all religious expression be neutral?

    • Ah: a different fuss! What I meant was that I don’t see how the rulings in Achbita and Bougnaoui change the domestic law in the UK.

  3. Pingback: Religious dress: Bougnaoui in the French Cour de Cassation | Law & Religion UK

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