The Round Up – European Court unveils controversial new ruling

17 March 2017 by Poppy Rimington-Pounder

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 27^th 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 @EUCourtPress: employers are allowed to ban #headscarves 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 24^th 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