Dr Iyiola Solanke
Can an employer compel a Christian employee to: a) remove jewellery worn to manifest religious belief or b) carry out workplace duties which are felt to contravene central tenets of their faith? How far must employers go to accommodate religion and belief? Do they have to accommodate believers, whose ‘commitment to religion ‘involves not just participation in the worship and corporate life of the religion concerned but adherence to its system of values’ in a way that influences their behaviour in their daily lives, outside the context of the religion’s corporate life? Must organisational aims respect religion?
Since the introduction in England and Wales of the Employment (Religion and Belief) Regulations in 2003 – in avowed implementation of Directive 2000/78/EC (the Employment Equality Directive) – , domestic courts in the UK have understood the requirements of EU law to place only a limited obligation upon employers to recognize and accommodate the religious beliefs of employees in the workplace: Muslim claimants such as Mohmed and Azmi were unsuccessful in gaining legal support to wear a long beard or the hijab; Christian claimants such as Mba have not persuaded judges that their religion should relieve them from Sunday working. Of course (national law implementing) EU law in this area is intended to be interpreted in a manner which is also consistent with the requirements of the ECHR (see R (on the application of AMICUS–MSF section, NUT and others) v. Secretary of State for Trade and Industry  ICR 1176 (EWHC, Admin) ). Strasbourg jurisprudence seems to be supportive of this stance with its dual approach to Article 9 ECHR on freedom of religious expression. In Kokkinakis, it said that religious freedom “implies freedom to manifest ones religion. Bearing witness in words and deeds is bound up with the existence of religious convictions” but it is agreed that this right is not absolute – Continue reading
This piece was orginally posted on Daniel Barnett’s employment law bulletin, and is reposted here with thanks.
The hard-working judges in the CJEU have yesterday, in KHS AG v Schulte (C-214/10) handed down a judgment which casts doubt on whether a holiday taken pursuant to the Working Time Directive should involve mere relaxation and leisure.
It is now long established that workers on long-term sick leave accumulate holiday (Stringer v HMRC (C-350/06)). However in Schulte the CJEU confirmed that this right is not without limits, and that to allow workers to accumulate unlimited amounts of holiday entitlement, or pay in lieu, does not reflect the purpose of Article 7 of the Working Time Directive. Whilst many of us might disagree with this, the CJEU held that holiday taken after a certain point in time ceases to provide a rest from work, and becomes “merely a period of relaxation and leisure”. They held that a holiday which involves mere relaxation and leisure, but does not provide a worker with a rest from work, is not consistent with the aim of Article 7 of the Working Time Directive.
Williams & Others v British Airways plc (C-155/10)
The CJEU last week (15 September 2011) handed down another important judgment in a claim brought by commercial airline pilots, seeking to enforce their employment law rights under EU law.
This claim concerned the proper method of calculating the amount of holiday pay owed to BA pilots, whose remuneration under their contracts of employment comprised three main components:
- A fixed annual salary;
- A supplemental payment which varied according to the time spent flying BA’s aircraft (calculated at £10 per flying hour); and
- A supplemental payment to compensate the pilots for time spent away from base (calculated at £2.73 per hour).
The ‘flying supplement’ was treated as fully taxable remuneration. As regards the ‘off base’ supplement, 82% was treated as having been paid on account of expenses and only 18% was treated as taxable remuneration.
The claimants’ contracts of employment provided that their holiday pay entitlement was calculated by reference to the fixed annual salary only; the supplemental payments were disregarded for this purpose.
The UK Court of Appeal ( IRLR 491) had accepted BA’s argument that the fixed annual salary alone constituted remuneration; and that its method of calculating workers’ entitlement to holiday pay was therefore permissible.
The Supreme Court ( IRLR 451) referred the matter to the CJEU, requesting clarification of the correct approach under EU law. The relevant provisions under consideration by the CJEU were Article 7 of Council Directive 2003/88/EC (“the Working Time Directive”) and Clause 3 of the European Agreement annexed to Council Directive 2000/79/EC (“the Aviation Directive”).