The Round Up – European Court unveils controversial new ruling

17 March 2017 by

Cloths Scarf Islamic Lady Veil Women Fabric

The EU’s highest court this week held that employers are entitled to ban religious symbols in the workplace, including the Islamic headscarf.

What were the references about?

Two Muslim women, Ms Achbita (Case C‑157/15) and Ms Bougnaoui (Case C‑188/15), claimed to have been victims of discrimination after they were dismissed for refusing to comply with their employers’ stipulations that they not wear the Islamic headscarf.

The EU’s Council Directive 2000/78 of 27th November 2000 provides a framework for equal treatment in employment and occupation. The Courts of Cassation from Belgium (Case C‑157/15) and France (Case C‑188/15) referred to the European Court of Justice regarding the interpretation of certain provisions of this directive.

What did the ECJ rule?

In Case C‑157/15, the Court ruled that “the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive” (Article 2(2)(a) of Directive 2000/78). Furthermore, they held that, while “such an internal rule of a private undertaking may constitute indirect discrimination” (Article 2(2)(b) of Directive 2000/78), it may be “objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary.”

In Case C‑188/15, the Court referred to its reasoning in the previous judgment. It then responded to the French Court of Cassation’s query as to whether the “very limited circumstances” in which “a difference of treatment may be justified where a characteristic related to religion or belief, disability, age or sexual orientation constitutes a genuine and determining occupational requirement” (Article 4(1) of Directive 2000/78) could include “the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf.” To this, the Court answered that a customer’s particular wishes could not dictate a genuine occupational requirement, and therefore an employer could not discriminate against anyone wearing the Islamic headscarf on this basis.

In sum, the Court has reserved the right of companies to ban all religious images in order to project a “neutral” image, but also prohibited them from doing so merely to indulge customers’ prejudices.

Criticism of the ruling

Some have criticised the ruling as a restriction on freedom of religion and expression, which may also lead to inevitable discrimination. Amnesty International has expressed concern that, while “employers are not at liberty to pander to the prejudices of their clients,” the ban on religious symbols may nevertheless function as “a backdoor to precisely such prejudice.”

The Open Society Justice Initiative, which supported the two women claiming discrimination in these cases, responded that the ruling “weakens the guarantee of equality that is at the heart of the EU’s anti-discrimination directive” and will “exclude many Muslim women from the workplace.” Several Muslim women who spoke to Al-Jazeera expressed their frustration with the ruling; one included Warda El-Kaddouri, the UN Youth Delegate for Belgium in 2015 and 2016, who has condemned the ECJ for choosing “to protect companies instead of citizens.”

Moreover, is not only Muslim women that may experience discrimination, but other religious communities too. Rabbi Pinchas Goldschmidt, president of the Conference of European Rabbis, said in a statement on Tuesday that “Europe is sending a clear message; its faith communities are no longer welcome.” Mejindarpal Kaur too, international legal director of global advocacy organization United Sikhs, said they feared that “employers will treat [the ruling] as a licence to discriminate at the point of hire.”

Praise of the ruling

Others have praised the ruling as championing secularism and equality. Stephen Evans of the National Secular Society in the UK, responded that “religious and political neutrality is a perfectly reasonable aim and, where businesses and organisations wish to present themselves in such a way, this ruling demonstrates that this approach is perfectly consistent with equality and human rights law.”

The majority of the praise has come from right-wing political groups. Manfred Weber, leader of the centre-right European People’s Party, tweeted his approval of the ECJ’s ruling: “Important decision by the : employers are allowed to ban at work. European values must be valid in public life.” While in France, the country that made one of the references, presidential candidate François Fillon, claimed the ruling was “an immense relief, not just for thousands of companies but also for their workers”, and heralded it as “a factor in cohesion and social peace.”

What impact will this have?

Ultimately the question of how great an impact this ruling will actually have has been left to national courts, and we must wait to see how the Belgian and French Courts of Cassation respond. In the UK, Prime Minister Theresa May insisted during PMQs that the UK retains “a strong tradition in this country of freedom of expression, and it is the right of all women to choose how they dress and we don’t intend to legislate on this issue.”

Nevertheless, the ruling appears to have paved the way for different interpretation and implementation by national courts across the EU, with widely divergent approaches likely to emerge.

ELSEWHERE IN THE COURTS: 

R v Blackman: the conviction of Alexander Blackman (or “Marine A”) has been reduced from murder to manslaughter on the ground of diminished responsibility. Blackman was convicted of murder for shooting an injured Taliban fighter in Afghanistan in 2011. His conviction was considered to be unsafe after psychiatric evidence, which had not obtained before trial nor called at trial, indicated that he was suffering from the recognised condition of “adjustment disorder.” The court found that the appellant had been an exemplary soldier before his deployment to Afghanistan, and as such concluded that his behaviour had been influenced by the combination of exceptional stressors and the sustained threat to the patrol at the time of the killing. Evidence included that of a former comrade of Blackman, Oliver Lee, who objected to Mr Blackman being treated as a “single rotten apple,” and rather condemned the “gung-ho” attitude of Mr Blackman’s wider company in abusing Afghan citizens and disregarding rules of engagement. The successful appeal followed campaigns by his wife Claire Blackman and the Daily Mail, while a petition calling for his freedom reached 34,440 signatures. A hearing date to review his sentence has yet to be fixed.

KV (Sri Lanka) v Secretary of State for the Home Department: the Court of Appeal dismissed an appeal from a Sri Lankan asylum seeker and ruled that the Upper Tribunal (Immigration and Asylum Chamber) was justified in concluding that the scarring on his body had been self-inflicted with the help of another (“self-infliction by proxy”). The appellant alleged he had received the scarring when he was detained and tortured by the authorities for his previous involvement with the Liberation Tigers of Tamil Eelam (aka the Tamil Tigers); he claimed asylum on the grounds that, were he to return now, he would be at real risk of persecution or serious ill-treatment. While the Court of Appeal rejected the Upper Tribunal’s proffered guidance in this decision on how medical evidence should be treated in “self-infliction by proxy” cases, holding that the Practice Direction was sufficient, it did nonetheless dismiss the appeal by a majority, noting the apparently inconsistent nature of the medical evidence. Elias J however, gave a dissenting judgment, pointing out the inconsistencies in the Upper Tribunal’s reasoning with regards to the appellant’s scarring and consciousness during the alleged tortured. He rounded off by saying: “the Tribunal’s conclusion was, in effect, that the appellant had allowed himself to be anaesthetised and then branded with a hot metal rod. If not a moral judgment, it certainly demeans the appellant. In my judgment the evidence needed to be particularly robust to justify such an unlikely conclusion. In my view it was not.”

IN THE NEWS:

MPs have voted in favour of reforming the Victorian law which makes abortion illegal. The Reproductive Health (Access to Terminations) Bill aims to remove the relevant provisions of the Offences Against the Person Act 1861 (ss. 58 and 59), under which having or providing for an abortion is an offence punishable with life imprisonment. A woman is also restricted under the Abortion Act 1967, whereby she can only have an abortion if it has been approved by two medical practitioners. Labour MP Diana Johnson introduced the ten-minute bill rule, arguing that women should be able to order the necessary pills online and terminate their pregnancy in the privacy of their own home. While 172 voted in favour of the bill, 142 nevertheless voted against it. One vigorous opponent was Christian MP Maria Caulfield, who warned that this could make women more vulnerable and susceptible to pressure from men to undergo an abortion. Clare Murphy however, Director of External Affairs at the British Pregnancy Advisory Service, has responded that “women in difficult circumstances are not protected or supported by laws that criminalise them and it is simply nonsensical to suggest they are.” The next reading will be on 24th March.

On the other hand, in Northern Ireland it remains unlawful even for doctors to distribute abortion pills: healthcare in Northern Ireland is a devolved matter, such that the Abortion Act 1967 has no force. Last week, on International Women’s Day, raids were carried out by the police in search of illegal abortion pills. Although the High Court in Northern Ireland has ruled that the almost total ban on abortion breaches international human rights legislation, women continue to be prosecuted for procuring abortion pills, both for themselves and others. Siobhan Fenton, a correspondent for the Independent, has condemned British MPs for their “hypocrisy” in voting for women’s abortion rights in England and Wales, but remaining silent on the issue in Northern Ireland.

The Law Commission, in a final report for their review of the Mental Capacity Act, have warned that local authorities are rendering people unlawfully deprived of their liberty (in breach of ECHR Article 5) by failing to carry out the relevant authorisations within the designated time frame. Currently, there are Deprivation of Liberty Safeguards (“DoLS”) for hospitals and care homes, which ensure that deprivations of liberty are authorised by local authorities, and that they can be challenged in court. Since the Supreme Court in their Cheshire West decision in 2014 extended the remit of the safeguards to apply to anyone who is subject to continuous supervision and control and unable to leave, local authorities have been overwhelmed by the drastically increased number of applications and have failed to complete the relevant authorisations – either within the time frame or at all. The Law Commission in their draft bill has urgently proposed that these DoLS be replaced with “Liberty Protection Safeguards,” which they claim will not only be more financially efficient, but also promote the authorisation of any deprivation to an earlier stage before arrangements are made, thus giving greater prominence to the detainee’s human rights.

by Poppy Rimington-Pounder

4 comments


  1. Ridiculous ! As long as you clearly show your FACE in public you should be free to dress as you like.On the other hand it would be a bit provocative to wear a prominent star of David if employed as a cleaner at the local mosque………….

  2. JM says:

    Quite a shocking verdict in this day and age…society continues to regress….:-(

    But on a related issue, little over 10 years I was working for a govt dept. ….and they had a similar policy….banning all political and religious expression….I only ever saw it applied to Muslims though…it most certainly was NOT applied to the young white female child who turned her desk/ work area into a shrine to the mass murdering war criminal, George Bush.

  3. Ronan McCrea says:

    I think the account of the role of customer preferences here is incorrect. The Court ruled that they may justify an indirectly discriminatory measure (covering all symbols of religion or belief) but cannot justify a directly discriminatory measure (targetting headscarves only).

    1. Ronan McCrea says:

      But the post overall is very informative. thanks!

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts http://ukhumanrightsblog.com/2011/04/11/us-state-department-reports-on-uk-human-rights/ Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: