Gordons Legal Employment Update – 17 March 2017

This week we consider two religion and belief discrimination decisions from the European Court of Justice (ECJ) and a disability discrimination / unfair dismissal decision from the Court of Appeal (CoA).

ECJ confirms that Employers can ban religious clothing and symbols (in limited circumstances!)

The following two cases have attracted a lot of media attention and it is important to focus on the legal realities rather than any political posturing or attention grabbing journalism. The judgments are more nuanced than the headlines would have us believe and do not give employers the freedom to simply ban the wearing of Islamic headscarves.

In the case of Achbita and Anor v G4S Secure Solutions NV, the Claimant worked as Receptionist for the G4S (a security company) in Belgium.  G4S’s employee code of conduct states that its employees ‘are not permitted to wear any religious, political or philosophical symbols while on duty’.  The Claimant was dismissed as a result of her decision to wear a headscarf whilst at work.  Amongst other things, she brought claims for direct and indirect discrimination on the ground of religion and belief.

The national courts dismissed the Claimant’s claims.  The matter was referred to the ECJ who held:

• G4S’s rule relating to religious symbols applied to the manifestation of any religious belief without distinction.  Therefore because the rule did not introduce a difference of treatment based upon religion or belief there was no direct discrimination;
• The rule potentially has the effect of being indirectly discriminatory and therefore the question of whether the rule can be objectively justified should be considered.  It considered that an employer’s wish to project an image of neutrality can be a legitimate aim provided the policy was followed in a consistent manner and applied only to those employees in customer-facing roles;
• The national court would need to consider whether G4S could have transferred the Claimant into a non-customer-facing role as an alternative to dismissing her.

Comment:  It will be interesting to see how the Courts of England and Wales will interpret this decision and in particular whether having such a blanket ban is capable of being objectively justified. In determining this, the Courts will have to effectively carry out a balancing act between the needs of the employer and individual rights.  We consider that the Courts of England and Wales are only likely to be willing to agree that a blanket ban is capable of being justified in very limited circumstances and as such employers need to be careful not to read this decision as giving them the right to ban all religious symbols.

In Bougnaoui and Anor v Micropole SA, the Claimant worked as a Design Engineer for the Respondent, a French company.  The Claimant was made aware from the outset of her employment that due to the customer-facing nature of her role she would not be allowed to wear her headscarf at all times.  A customer raised a complaint following a site visit that the Claimant had worn a headscarf and asked that she did not do so in the future.

The Respondent raised this issue with the Claimant, who refused to comply with the request and the Claimant was dismissed because of this refusal.  The Claimant unsuccessfully claimed discrimination on religious grounds in the national courts and the matter was referred to the ECJ on the question of whether the treatment could be defended as being a “genuine and determining occupational requirement” under the EU Equal Treatment Framework Directive.

The ECJ held that the “genuine and determining occupational requirement” exemption did not exist in these circumstances and can only be relied upon in very limited circumstances, where the requirement is objectively dictated by the nature of the occupational activities or the context in which they are carried out.  Subjective considerations, such as the wishes of a customer cannot be taken into consideration.

Comment:  The ECJ’s decision here is not at all surprising. In the event that the contrary view had been taken, this could lead to some very peculiar outcomes indeed, where an instruction to discriminate could be found to be lawful.

Long Terms Absence Dismissals

In the recent case of O’Brien v Bolton St Catherine’s Academy the Court of Appeal grappled with the legal tests of “discrimination arising from disability” and “unfair dismissal” in the context of long term absence dismissals.

The Claimant had been off sick for more than a year. Whilst the CoA acknowledged that at the point of dismissal the medical evidence appeared to justify the decision, when the Claimant produced new evidence confirming that her return to work was imminent, the failure to take this into account rendered the dismissal unfair and therefore also discriminatory.

In the Judgment at first instance, the Tribunal had failed to separate out the two legal tests despite differences in the statutory wording and the burden of proof. However, the CoA concluded that this failure to consider them separately was not of itself an error of law.

Comment: Arguing a claim for long term absence dismissal will almost always cover the law of disability discrimination and unfair dismissal. The Tribunal is basically considering the same factual points (medical circumstances, length of time off, provision of warnings, reasonableness of alternatives, reconsidering upon production of new medical evidence). So whilst the law on the page looks very different the courts have concluded that the tests are pretty much the same. So this is a victory for common sense over legal jargon and I think we can all appreciate that.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.