Judgments of the European Court of Justice and the Human Rights Court are odd things. Like buses, they come in pairs. Unfortunately though, some recent buses would appear to be going in opposite directions. What is an employer to do?
In the case of Eweida and others v the United Kingdom, the court (the European Court of Human Rights and Fundamental Freedoms) upheld the employee’s right to wear a cross/crucifix at work, despite the employer’s dress code banning religious symbolism.
This case helped determine that unless there is a really good reason why not, employees could wear religious symbols. Employment lawyers everywhere could advise with some certainty. We all sat back. The question was settled. Broad sunlit uplands beckoned. Judicial brows unfurrowed. Sorted.
Alas. It would appear that the European Court of Justice, whose job it is to rule on questions involving the constituent treaties of the EU, has marched off in a quite different direction.
In Achbita v G4S Secure Solutions NV, (a case involving a head scarf worn for religious purposes) it was held that there was no direct discrimination because the company’s policy of ‘strict religious and ideological neutrality’ was imposed on all employees. In other words, it was precisely because of the blanket nature of the ban on religious symbolism, that the employer’s conduct was justified. The court also held that even if the policy was discriminatory, it was justified on grounds of being a genuine occupational requirement.
One prominent source has suggested:
“Numerous EU jurisdictions have been grappling with the issue of Islamic headscarves and full-face veils. The ECJ’s judgment [Achbita] is interesting as it allows employers to put in place ‘blanket bans’ on all religious symbols – which include crosses and headscarves. It doesn’t allow employers to do this in response to customer prejudice and would need to be neutral.
“Unlike other EU states, the UK doesn’t have a culture of taking religion out of public life or office and we don’t think many employers would want to ban their employees from wearing headscarves. There is more controversy in the UK, however, about full-face veils – this decision doesn’t allow employers to distinguish in this way because they have to be neutral.”
Another prominent source, interviewed on the BBC World Service on the 20th of March 2017 suggested that: “If you are going to ban head-scarfs under this blanket ban approach, you might also find yourself banning Christmas parties."
My advice to employers is this: Behave with common sense - don’t pick a fight unless you have to. But if you do decide that you must make a stand, make sure you have what you need in place beforehand.
I once had a conversation with an employer: “You know our girl in reception?” (I kid you not, these were the words used.) “She told me she was pregnant and so I had to let her go, what do I do now…..?”
Please, seek advice before you take a step that commits you.