Ban on Islamic Headscarves – Indirect or Direct Discrimination?

This issue has come to light in the media recently, with conflicting decisions from two Advocate Generals causing some controversy.

In Bougnaoui and another v Micropole SA (Case C-188/15) Advocate General Sharpston considered whether a French employer's ban on the wearing of Muslim headscarves by staff amounted to direct and/or indirect discrimination under the Equal Treatment Framework Directive (2000/78/EC). AG Sharpston’s opinion was in stark contrast to the opinion given recently by Advocate General Kokott in Achbita and another v G4S Secure Solutions NV (Case C-157/15), involving very similar facts.

The facts in Achbita involved a Muslim employee who began to wear a headscarf three years into her employment at work despite a company rule which prohibited the wearing of any visible signs of religious beliefs. She was dismissed and she appealed through the courts to the Belgian Constitutional Court which then posed the question to the European Court of Justice (ECJ).

AG Kokott expressed the opinion that the prohibition of wearing a headscarf stemmed from a general neutrality policy, and so did not amount to direct discrimination; at most, it could amount to indirect discrimination. Even then, it might be justified as an occupational requirement, with consideration to be given to the size of the symbol, the nature and context of the employee's activity and the national identity of the Member State concerned.

In Bougnaoui, the Claimant was employed by Micropole SA as a design engineer. She was a practising Muslim and wore an Islamic headscarf at work; her role involved her meeting with clients face to face. A client complained to Ms Bougnaoui’s employer and requested that there should be “no veil next time”. She was asked not to wear her headscarf when visiting clients and when she refused to do so, she was dismissed.

The French Labour Tribunal dismissed Ms Bougnaoui's claim for discrimination based on her religious beliefs and held that the dismissal was well founded on the basis of a "genuine and serious reason".

The case was referred to the ECJ and questions were asked specifically whether, on the assumption that Ms Bougnaoui's treatment was discriminatory, it could be justified as being based on a “genuine occupational requirement” under Article 4(1).

Advocate General Sharpston opined that Ms Bougnaoui's dismissal for wearing a headscarf when in meetings with customers of the employer's business constituted unlawful direct discrimination on the grounds of religion or belief. She further stated that it was clear that she had been treated less favourably on the ground of her religion than a comparator would have been treated in a similar situation.

AG Sharpston also sought to widen the concept of direct discrimination to include, not only less favourable treatment because of a person's religion, but less favourable treatment because of a person's manifestation of their religion – this is significant because there is no general defence of objective justification to a claim of direct religious discrimination.

So, will the decision affect UK law?

If AG Sharpston’s opinion is upheld then it may potentially add a direct discrimination claim. The Judgment in the case of Eweida v British Airways plc will still be considered good law in the UK. The current assumption in the UK is that dress codes could give rise to an indirect discrimination claim, rather than direct, as the requirement to dress in a particular way is applied to everyone.

Given the two very conflicting opinions in these two cases, the decisions of the ECJ will be eagerly anticipated.

Kiran Chana - Trainee Solicitor

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The EU debate - discrimination

In this blog I want to look at the legal effect of EU membership from the perspective of discrimination law.

I begin by quoting (again – I hope he does not mind) from the advice of Michael Ford QC to the TUC* on this subject:

“It is difficult to overstate the significance of EU law in protecting against sex discrimination.“

I am (again) deliberately trying to avoid a political take on this stuff. I think Ford’s point would be accepted without significant qualification by perhaps 80-90% of employment lawyers.

Why is that? Here are a few concrete examples of legal changes that arose directly out of EU legislation/caselaw:

• Protection from discrimination on the grounds of sexual orientation. Until 2003 this was not a protected characteristic (like sex, race and disability). The Regulations that made it so came about in consequence of the EU Framework Directive.

• Pregnancy protection: the European courts decided that it was not open to an employer to argue that it could justify discrimination against a pregnant woman by saying “we would have treated a man off with sickness the same way” – they ruled that pregnancy is (rather obviously) a female-specific condition – so that no comparison was necessary. Without that ruling protection from pregnancy discrimination would be hugely undermined.

• In the Equal Pay sphere the ECJ extended the concept of pay to pensions – so that part time workers were successfully able to claim equality of terms on the pensions front (and since most part timers are women…

• The ECJ has opened the way to claims of “associative discrimination” e.g. you must not discriminate against A, on the basis of A’s child’s disability (even if A is not disabled).

• Compensation: the European requirement for proper compensation for discrimination made it so that the UK now allows unlimited compensation for victims of discrimination (it is plain that imposing a cap is on the agenda in the event of a Leave vote).

None of this is controversial stuff. Links to the cases and Regulations that support these conclusions are all in the advice to which I link below.

Of course, none of this means you must vote any particular way. My aim is simply to shed some factual light on just a small part of a subject that seems littered at present with half-truths and hyperbole.

* https://www.tuc.org.uk/sites/default/files/Brexit%20Legal%20Opinion.pdf

Paul Scholey - Senior Partner

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The EU debate – thoughts on holiday rights

There is a lot of fairly heated discussion on the “Brexit” debate.  The claims and counter-claims by each side have begun, I suggest, to border on the silly.  Hyperbole is the order of the day.

I want to look, in the next couple of weeks, at just a handful of what I think are concrete matters (in so far as law is ever so dependable) that relate to the legal effect of our participation in the EU.

First off: holidays.

My clients were always surprised when, early in my career (nearly 30 years back), I advised them that they were not automatically entitled to paid holidays.  Indeed, they were not entitled, unless their contract provided otherwise, to any holidays at all.  Not even bank/public holidays.  It was perfectly possible to agree to work 52 weeks a year, with no holiday; or to find that such holidays as one might take, were unpaid.

That held true till 1998 and the Working Time Regulations (WTR).  Under those Regulations, as subsequently amended, employees are now entitled to 5.6 weeks a year paid holiday.  Also rest breaks, and a limit (usually honoured in the breach) on working hours.

The WTR arose directly out of Europe’s health and safety based Working Time Directive.  I doubt many people now think it’s a bad thing, to have a legal entitlement to paid time off.  But UK governments have not all agreed.

So it’s worth bearing in mind that the UK government:

• took 2 years longer than it ought, to implement the WTR
• challenged the legality of the Directive in the ECJ
• campaigned against it
• took advantage of derogations from it (e.g. the individual opt-out for the maximum working week)
• framed the WTR so that regular overtime and e.g. commission payments were all ignored in calculating holiday pay

Michael Ford QC, in his excellent advice to the TUC* on the implications of a Leave vote (and whether you agree with him or not, it’s an impressive piece of work), says this:  “In  the  event  of  Brexit,  substantial changes to or wholesale revocation of WTR is predictable.”  That can’t be far wrong, given the above mentioned approach of the UK to the WTR/Directive historically.

We can see more recent evidence of this in relation to the “Bear Scotland” series of cases on calculating holiday pay.  As soon as it became clear that a European approach to calculation was appropriate (so that e.g. overtime would be included in holiday pay), the government legislated almost overnight a) to put a 2-year “long stop” on claims for historical back pay and b) to prevent aggregation of claims where there existed any 3-month or longer gap between underpayments.

And to get an idea how politicians are already thinking, you can do worse than looking here: http://www.publications.parliament.uk/pa/bills/cbill/2015-2016/0046/cbill_2015-20160046_en_2.htm#l1g1 – a link to the Private Members’ Bill supported by C R Coope, MP for Christchurch.  There is already a move to water down our holiday rights – it’s not realistic to think that will change on a Brexit event.

None of the above will be much controversial to employment lawyers.  It is a shame that the debate (on both sides of the fence) hasn’t been put in more factual (and less frenetic) terms.  I’d welcome views from readers, especially if expressed in reasonable terms.

* https://www.tuc.org.uk/sites/default/files/Brexit%20Legal%20Opinion.pdf

Paul Scholey - Senior Partner

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Everyone’s a Lawyer

Or a jury member, perhaps.

As we reflect on the outcome of the 2-years-in-the-making Hillsborough inquest, I can’t help but notice that a lot of people have a lot of views about what happened that fateful day 26 years ago, and whether the jury got it right, or partly right, or not at all right.

It’s a common thing – all the more common in this age of insta-comment thanks to Social Media in all its many flavours.  Everyone’s a critic, they used to say.

But as a lawyer I’ve often been asked my opinion on the latest trial outcome.  “Did you see that Mr X got off?  Disgusting, isn’t it?”

As an aside I can’t help but mention that the questions always seem to be phrased this way:  did the defendant “get off”?  No, he didn’t “get off”.  He was acquitted.  He was innocent till proven guilty, and he wasn’t proven guilty, so how could he “get off” anything?

I’ll get back to Hillsborough in a moment.

My answer is, nearly always, “I don’t know enough about it to form a view.  But the jury probably did, and probably got it right.”

Court proceedings are nothing like as interesting as they are portrayed in fiction.  A moment’s brilliant cross-examination might take your breath away – once, for a minute, in a 3 day hearing – but it’s the exception, not the rule.

The rule is prosaic.  The advocates take the jury through the evidence, one step at a time.  Many witnesses recount uncontroversial matters.  Many items of evidence – photos, maps, diagrams, items from the scene and so on – will be looked at and looked at again.  Experts will give evidence, in detail, sometimes for hours, sometimes for days.  Reports running into 100s of pages will be reviewed, meticulously, by judge and jury.  Tough questions will be asked.  Opinions change.

And sometimes the outcome is the wrong one.  Every now and then there’s a miscarriage of justice.  That’s why I’m so sure that we need to keep an excellent, expert and legally-aided criminal defence system going in this country – because without it, you can face the full weight of “the system” with no-one to help; and sometimes you’ll be locked up for being in the wrong place at the wrong time.

But that isn’t common.  The usual outcome, in my experience of nearly 30 years in practice, is that the jury gets it right.

The Hillsborough jury took 2 years to get it right.  They lived and breathed that dreadful day, for 2 years.  Lawyers represented just about everyone with a proper interest.  All the questions seem to have been asked, all the evidence considered.

Is it likely that the odd commenter on Social Media is right, and that this jury got it wrong?

I don’t think so.  From what I’ve seen and read in the press – and you can’t rely on it too far, I know – the conclusions of the jury are not only likely right – but fairly unsurprising.

Social Media gives everyone the chance to be a lawyer.  But I think we should all think twice before we take a view contrary to the people who have really looked into a case.

Paul Scholey - Senior Partner

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Mind the Gap – Gender pay reporting rules

The government has published in draft The Equality Act (Gender Pay Gap information) Regulations 2016. These set out the framework for the new gender pay reporting requirements.

So who will this impact?

The reporting obligation will apply to private, voluntary and public sector employers in the UK with at least 250 employees.

What are the requirements?

Employers will be required to publish the following information:-

1. The overall mean and median gender pay gap across their workforce, using an hourly pay rate for each relevant employee. “Pay” for these purposes is defined broadly and includes basic pay, paid leave, maternity pay, sick pay and most allowances such as car allowances, shift premium pay and bonuses. However overtime, the value of salary sacrifice schemes and benefits in kind will not be included as part of the calculation.
2. The difference between the mean bonus payments made to men and women. The number of men and women in each quartile of the employer’s pay distribution. This is intended to illustrate whether female employees are concentrated in a particular way in terms of their remuneration, which would potentially indicate impediments to career progression.
3. Employers will have the option to publish a narrative to accompany the pay gap information.

Where is the information to be published?

The information must be published on a searchable UK website that is accessible to employees and the public and then maintained for at least three years to allow progress to be tracked. The information must also be uploaded to a government website.

Is there to be any ‘penalty’ for non-compliance?

The plan to introduce a civil penalty in the form of a fine has been replaced with a focus on ‘naming and shaming’ the employers who fail to comply. There is no specific penalty for non-compliance at the moment but this will be kept under review.

So what happens next?

The draft regulations are subject to a consultation that will close on 11 March 2016. The draft regulations are scheduled to take effect on 1 October 2016. Employers will be required to prepare a preliminary data snapshot showing the gender pay position as at 30 April 2017 and the detailed pay information must then be calculated and published on a date of the employer’s choosing but by April 2018 at the latest.

It will be interesting to see how the implementation of the Regulations is carried out, if the website will be up and running on time, and also how many Employers will actually feel threatened enough by the “naming and shaming” to even comply with the Regulations.

Samantha Simpson - Trainee Solicitor

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Deregulation for all – except unions?

For a Government obsessed with the ‘D’ word, their proposed changes to unions by way of the Trade Union Bill will cause unions to have to dig very deep to meet the anticipated additional costs of the red-tape they are required to comply with.

The Government’s own BIS impact assessment identifies that the changes will immediately cost UK unions over £11 million and a further £26 million over 5 years. Yes, tens of millions of pounds will be incurred by unions in complying with the additional red-tape involved.

Of those costs, the Certification Office (the statutory body overseeing unions) will increase its operating costs from the current £850,000 per year to nearly £2 million per year. These costs will be paid for by the unions.

If deregulation is a good thing – and we certainly hear that from Ministers often enough – why on earth is all this additional Red Tape being required?  It is hard to avoid the conclusion that it’s a thinly-veiled attack on the Unions.  Few countries in the West regulate and control their Unions to the extent we do here.  Is it really necessary to add to that burden?

David Sorensen - Partner

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Religion vs the Secular State

In Ebrahimian v France, the European Court of Human Rights has delivered a powerful blow against the individual’s right to manifest their religious beliefs.

Ebhrahimian was a social worker in the public sector.  Her contract was not renewed when she refused to stop wearing religious headgear.

She lost her case.  It was important, said EctHR, that the freedom of religion of her patients should be respected – and that meant that she should do nothing that might convey a particular religious world view to others.

I think it’s a surprising decision – although the reluctance of Europe’s judges to interfere with the discretion of member states is becoming more and more plain.

You may recall the case of Ms Eweida, a BA employee whose legal campaign for the right to display a cross became a cause celebre for the right to freedom of religion and belief.

In Eweida, ECtHR said this: “On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image.”

Yet in Ebrahimian the value of communicating the claimant’s “central tenet of her life” was trumped altogether by the nature of secular society in France.

The judgment is in French only, at present, but I’ve seen a translation of the single dissenting judge’s opinion and it includes this: “A principle of constitutional law or a constitutional ‘tradition’ may easily end up by being deified, thereby undermining every value underpinning the Convention.”

The point has elsewhere been made – if we must refrain from any manifestation of our religious views, must our public servants become nameless, identified only by initials?  Since the perception of a patient might well be that “Mohammed” isn’t a Christian name, nor David a Hindu one.

Is the decision limited to France, with its constitutional guarantee of secularity?

I think not.  If the ECtHR wants a level playing field (i.e. no manifestation by anyone) then that must apply with equal – or perhaps greater – force in a society where Christianity is an established religion (how else to protect minority rights?)

Europe’s jurisprudence has never been terribly easy to follow.  In this case I suspect the baby has been thrown out with the bathwater.

Paul Scholey - Senior Partner

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