The vexed question of an employee’s right to manifest his religion in the workplace has twice raised its head in the EU courts in recent months. Employers seeking a definitive steer on the question should look away now.
Both cases deal with similar facts and contain exhaustive reviews of relevant considerations and authorities, and then appear to go in completely different directions. Though the cases in question are French and Belgian, the uncertainty they create as a result will affect English employers too, at least pending Brexit. At this stage, these are merely non-binding Advocate General Opinions and the European Court of Justice itself is scheduled to say something definite on the point later in the year, but where do you stand in the meantime?
In Achbita –v– G4S, the ECJ has been asked to decide whether it is lawful in Belgium to prohibit a female Muslim employee from wearing a headscarf in circumstances where the employer also prohibits the wearing of any other outward signs of political, philosophical or religious belief at the workplace. One Advocate General’s Opinion – yes.
By contrast, in the French case, Bougnaoui –v– Micropole SA, the question is whether the express wish of a customer not to have the employer’s services provided by an employee wearing an Islamic headscarf constitutes a genuine and determining occupational requirement such that the employer’s acting on that wish would not be unlawful discrimination. A different AG’s answer – no.
So superficially we have a situation in which the employer can potentially impose blanket dress rules banning any form of religious manifestation, but cannot do so merely because it knows or believes that its customers want it. There are minor differences of law and fact between the two cases but at a practical level they are inescapably incompatible. So which is to be preferred (as a matter of law, rather than from a religious perspective)?
Both cases resolve around where you put the balance between the potentially conflicting rights of the business to run itself as it wishes and of the individual not to be discriminated against on the grounds of his faith. For this purpose the Bougnaoui Opinion makes it clear that discrimination on the grounds of manifestation of one’s belief is indistinguishable from discrimination on the grounds of the belief itself. The Achbita Opinion said that so long as there was decent reason for the “no outward signs” dress code (here, the importance of overt neutrality in the employer’s staff), that balance lay on the side of the employer. The AG in Bougnaoui thought otherwise and made a number of reasonably compelling suggestions for employers considering where that balance should lie. In our view it is the Opinion more likely to be attractive to the ECJ.
Lessons for Employers:
- “The starting point for any analysis must be that an employee has in principle the right to wear religious apparel or a religious sign, but that the employer also has or may have the right to impose restrictions”.
- “When the employer concludes a contract of employment with an employee, he does not buy that person’s soul” [Editorial note – bit of a surprise for City law firms, that one]. “He does, however, buy his time”. As a result, while the employer must balance rights to manifest with rights to run its business, it is not in any way obliged to tolerate proselytising, which has “simply no place in the work context”.
- Given the employer’s legitimate interest in the consistent appearance of its staff, “where an undertaking has a policy requiring its employees to wear a uniform, it is not unreasonable to require that employees should do as much as possible to meet it” (for example, to require a particular colour or pattern for the headscarf).
- “What is proportionate [in determining where the balance lies] may vary depending on the size of the business…an employer in a large undertaking can be expected to take greater steps to make a reasonable accommodation with his workforce than an employer in a small or medium-sized one”.
- “The employer and employee will need to explore options together in order to arrive at a solution that accommodates both the employee’s right to manifest his religious belief and the employer’s right to conduct his business. While the employee does not…have an absolute right to insist that he be allowed to do a particular job within the organisation on his own terms, nor should he readily be told that he should look for alternative employment. A solution that lies somewhere between those two positions is likely to be proportionate”.
- “Western society regards visual or eye contact as being of fundamental importance in any relationship involving face to face communication between representatives of a business and its customers. It follows…that a rule that imposed a prohibition on wearing religious apparel that covers the eyes and the face entirely whilst performing that involved such contact with customers would be proportionate. The balancing of interest would favour the employer”. This sadly leaves unanswered the question of whether that visual or eye contact is also a necessary part of internal management and/or the maintenance of relations with one’s colleagues – we do not think that this should be about external contacts only.
- “In the last resort, the business interest in generating maximum profit should … give way to the right of the individual employee to manifest his religious convictions….Where the customer’s attitude may itself be indicative of prejudice…it seems…particularly dangerous to excuse the employer from compliance with an equal treatment requirement in order to pander to that prejudice.”
In summary, an employer will need very good reasons indeed before seeking to enforce any rule which bans the wearing of religious items or dress in the workplace. It seems clear that where this is for health and safety purposes, such a rule may be enforceable, but it is also clear that mere customer preference and protection of your bottom line will not be enough.
That is, with respect, easy for the AG to say. But where your business is heavily reliant on a particular customer there may be many more jobs dependant on that relationship than merely that of the religious adherent. It is not hard to anticipate that after an appropriate crisis of conscience some employers might make a decision based precisely on protection of that bottom line, regardless of its other consequences.