Visible Religious Symbols: European Court Ruling

Maria Miller Excerpts

Wednesday 15th March 2017 Commons Chamber

[Mrs Maria Miller (Basingstoke) (Con)]

(Urgent Question): To ask the Parliamentary Under-Secretary of State for Women and Equalities if she will make a statement on the recent Court of Justice of the European Union ruling allowing employers to ban workers from wearing religious dress and symbols in the workplace.

[The Parliamentary Under-Secretary of State for Women and Equalities (Caroline Dinenage)]

I thank my right hon. Friend for raising this important issue and for giving the Government an opportunity to inform and, I hope, reassure the House about the two Court of Justice of the European Union judgments issued yesterday. The Government are completely opposed to discrimination, including on grounds of gender or religion, or both. It is the right of all women to choose how they dress, and we do not believe that the judgments change that. Exactly the same legal protections apply today as applied before the rulings.

In both the Achbita case and the Bougnaoui case, the judgment was that there was no direct discrimination, but that there was some discrimination. A rule is directly discriminatory if it treats someone less favourably because of their sex, race, religion or whatever. A rule is indirectly discriminatory if, on the face of it, it treats everyone the same, but some people, because of their race, religion, sex and so on, find it harder to comply than others do. Indirect discrimination may be justifiable if an employer is acting in a proportionate manner to achieve a legitimate aim.

The judgments confirm the existing long-standing position of EU and domestic law that an employer’s dress code, where it applies to and is applied in the same way to all employees, may be justifiable if the employer can show legitimate and proportionate grounds for it. Various cases show that such an employer needs to be prepared to justify those grounds in front of a court or tribunal if need be. That will remain the case and that is the case with these judgments, which will now revert to the domestic courts.

I am aware of some concern that the judgments potentially conflict with the judgments of the European Court of Human Rights, particularly in the case of Nadia Eweida, the British Airways stewardess banned from wearing a small crucifix but whose case the ECHR upheld. We do not believe that the different judgments are in conflict. Both the CJEU and the ECHR were trying to assess the balance in each case between the religious needs of the employee and the needs of the employer. In Eweida, the assessment favoured the employee; in another ECHR case, and also in the Achbita case, the assessment favoured the employer. We will still take action to ensure that the current legal position is set out. We will be working with the Equality and Human Rights Commission to update guidance for employers on dealing with religion or belief in the workplace. The guidance will be revised to take account of the CJEU judgments, too. We will make it absolutely clear to all concerned that the Equality Act 2010 and the rights of women and religious employees remain unchanged.

Like any judgment of the CJEU, for the time being, Achbita and Bougnaoui need to be taken into account by domestic courts and tribunals as they consider future cases. The law is clear and remains unchanged. However, because of our absolute commitment to ensuring that discrimination and prejudice are never encouraged or sanctioned, we will keep the issue under very close review.

[Mrs Miller]

In this country, we have a long tradition of respecting religious freedom and, frankly, many people will listen in disbelief to the Court’s ruling that a corporate multinational such as G4S risks having its corporate neutrality undermined by a receptionist in Belgium wearing a headscarf. At what point did the law decide that expressing religious belief through a cross, a turban or a headscarf is a threat to organisational neutrality? Here in the House of Commons, our staff pride themselves on their neutrality, but will such organisations be forced to consider this new ruling? If not, in what circumstances could an organisation legitimately require such neutrality from its workers? Surely there are serious potential implications for those who deliver public services.

One group is specifically affected—Muslim women, who already experience twice the unemployment rate of the general population. The Government need to monitor the situation carefully to ensure that employers do not use the ruling to effectively exclude thousands of Muslim women from the workplace.

We are leaving the EU soon, but the ruling will potentially continue to influence the way in which the Equality Act is interpreted by the courts. Parliamentarians need clarity, workers need clarity and employers need clarity, and we want to ensure that this ruling does not have damaging consequences for freedom of religious belief in our country.

[Caroline Dinenage]

My right hon. Friend is right to raise this case. As I said, the UK has some of the strongest equality legislation in the world and our laws give people robust protection from religious discrimination in the workplace. It is and remains unlawful to directly discriminate against someone because of their religion or to create spurious rules that would prevent them from wearing religious clothing or jewellery. Employers can enforce a dress code, but it must be for proportionate and legitimate reasons, and must apply equally to all employees. If an employer wants to have a neutral dress code with no religious symbols being worn, it must apply equally to all employees and all religions.

Dress codes are a matter for individual employers and will depend on the particular type of work involved, the environment and the safety considerations, above all. The CJEU has found that these cases would constitute indirect discrimination and has referred them back to the national courts to consider whether, based on the specifics, they would be unlawful. The UK’s legal position has not changed. The EHRC has already published guidance for employers on religion and belief in the workplace, and we will work with it to update that guidance to take account of these rulings and to carefully explain how they should be interpreted in UK workplaces. But I must reiterate that this Government are absolutely committed to supporting people into work whatever their background, making Britain a country that works for everyone and not just the privileged few.