Comment on the Achbita and Bougnaoui judgements
Labour & European Law Review Weekly Issue 519 10 May 2017
Given the current anti-immigration discourse throughout Europe, it is a shame that the CJEU did not provide a judgment which reinforced the rights of minorities. It missed an opportunity to provide sensible guidance on how to balance the rights of individuals against those of employers.
The Achbita judgment is problematic for several reasons:
- It is not clear cut that the claimant’s treatment did not amount to direct discrimination. The fact that the company would also have dismissed a Sikh employee wearing a Turban or a Christian wearing a crucifix is not particularly relevant. The fact is that the policy is aimed at people with particular religious beliefs even if it also applies to philosophical or political beliefs. How would the employer treat a Muslim man with a beard in comparison with a hipster who has a beard?
- In terms of indirect discrimination the CJEU said that that a desire to display a policy of political, philosophical or religious neutrality ‘must be considered legitimate’. This does not appear to have been based on any factual evidence. For example there was no consideration of the nature of the employer’s business, or even if there was any commercial risk by allowing staff with customer-facing roles to wear religious symbols.
- Once it decided that the aim was legitimate the CJEU said that whether the policy is ‘necessary’ would depend on whether it was limited to employees in a customer facing role. If it was, then the policy would be doing no more than was necessary to achieve the legitimate aim. This suggests that it is acceptable to exclude anyone from a customer facing role if they are visibly of a particular faith. This is an odd finding, because it seems to suggest that other employees of the company are able to believe that its religious neutrality stance is not compromised by allowing colleagues to wear a head scarf or Christian cross, but the public itself is not able to distinguish in the same way. In a multi faith pluralistic society is it really acceptable to banish people who wish to wear religious symbols to the back room and away from the public?
- it was obviously difficult for her employer to justify the rule on the basis that it was a requirement of her duties that she could not wear a headscarf because a client preferred her not to. It would undermine the law protecting workers from discrimination if discriminatory treatment could be excused because of customer complaints. How can it possibly be that an IT designer’s ability to carry out their work is affected by wearing a headscarf?
It is important to note that these cases came from Belgium and France where secularism forms part of the constitutions and so neutrality is significant. In UK cases of this nature the proportionality test has been applied with fuller consideration of the circumstances of the case. See for example Eweida v United Kingdom (weekly LELR 315) in which the European Court of Human Rights (ECtHR) held that the UK had failed to protect an employee’s right to manifest her religious belief. The claimant, a member of check-in staff for British Airways, was required to conceal her cross necklace to conform to BA’s dress code. The ECtHR held that while BA’s wish to project a certain corporate image was legitimate, the UK Court of Appeal had given it too much weight.