The CJEU’s Headscarves cases: analysis of the contrasting AG opinions

Darryl HutcheonDarryl Hutcheon

Conflicts between the religious practices of workers and the ‘neutrality’ policies of their employers have repeatedly come before the European Court of Human Rights (“ECtHR”) and domestic courts in the UK. They now arise for the first time before the Court of Justice of the European Union (“CJEU”) in two cases: C-188/15 Bougnaoui v Micropole SA and C-157/15 Achbita v G4S Secure Solutions NV80. This note analyses the opinion of Advocate General Sharpston in Bougnaoui handed down on 13 July 2016; contrasts that opinion with the earlier opinion[1] of AG Kokott in Achbita; and considers what these decisions tell us about the future trajectory of EU (and domestic) discrimination law.

Facts in both cases

Ms Bougnaoui and Ms Achbita are Muslim women who were employed in customer-facing roles by private sector employers. Both wore headscarves but wore nothing which covered their faces. Ms Bougnaoui was told that her headscarf had ‘embarrassed’ the employees of a company client she had visited; she was dismissed when she refused to agree not to wear a headscarf on future visits to that client. Ms Achbita had worked for her employer for some time before she started to wear a headscarf; she was then dismissed on the basis that her new practice breached a strict company ‘neutrality’ policy.

AG Sharpston’s opinion in Bougnaoui

Several aspects of AG Sharpston’s opinion are worthy of comment.

First, she rejected the suggestion that EU law on religious discrimination ought precisely to reflect the ECtHR’s article 9 (freedom of religion) jurisprudence, in effect by allowing a human rights justification/proportionality defence to direct discrimination claims ([58] – [67]). AG Sharpston maintained that the Framework Directive 2000/78 (“the Directive”) set down a clear distinction: indirect discrimination can be defended by reference to proportionality, but direct discrimination admits of (much) narrower exceptions.[2] Her position stands in contrast to the view expressed by some senior judges in the UK that the lack of a general justification defence to direct discrimination is a “defect” in the law: see e.g. R (E) v Governing Body of JFS [2009] UKSC 15 at [9].

Second, AG Sharpston concluded that the decision to dismiss Ms Bougnaoui constituted direct, and not just indirect, discrimination ([83] – [89]). “Religion” for these purposes included manifestations of religion like wearing a headscarf. The judgment does not directly engage with the question of how courts should identify whether a particular act constitutes a “manifestation of religion”, but the case-law of the ECtHR on that subject will doubtlessly be persuasive. The recognition that religion is not just a status but an identity partly constituted by acts is intuitively attractive and compares favourably to the sometimes strained efforts of British judges to dissociate “religion” from acts which are obviously part and parcel of a person’s religion.[3] It leaves open the interesting question of whether EU law will permit employers to sanction employees whose religiously-motivated behaviour impacts negatively on other employees or on their work (as in the well-known “evangelising at work” cases). English courts have addressed this situation by distinguishing action taken because of religion/religious manifestations and action taken because of “the way in which (a worker) manifested or shared it”.[4] AG Sharpston’s opinion can probably be reconciled with that approach.

Third, AG Sharpston concluded that there was no basis to conclude that article 4(1) of the Directive (the genuine occupational requirement defence to direct discrimination claims) applied on the facts ([90] – [102]). It was decisive that Ms Bougnaoui remained perfectly able to perform her professional duties. Notably, AG Sharpston found it “hard to envisage” any application of the article 4(1) defence in religious discrimination claims, other than on health and safety grounds ([99]). She also gave a narrow reading to article 2(5) of the Directive (pursuant to which the Directive is subject to national measures which are necessary in pursuit of various public policy objectives), suggesting it could not be relied on by employers citing business reasons ([104] – [105]).

Fourth, AG Sharpston remarked on the application of the principles of indirect discrimination (in case the Court concluded that her characterisation of the claim as direct discrimination was mistaken). While an employer’s business reasons could constitute a legitimate aim, the question of proportionality was more complex ([134]). These kinds of issues could ordinarily be resolved by discussion between employer and employee; but ultimately, where an employer stood to lose out because of the prejudiced attitudes of its customers, “the business interest in generating maximum profit should… give way to the right of the individual employee to manifest his religious convictions” ([133]).

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Plus ça change: the legal implications of remaining within the EU

Claire Darwin - Matrix ChambersClaire Darwin, Matrix Chambers

[This article was written on 5th February 2016, and does not reflect any legal or political developments after that date].

Whilst much legal ink has been spilt on the legal implications of the UK leaving the EU (aka Brexit), remaining a member of the EU will have legal implications too. The EU referendum, currently expected to be held on 23 June 2016, will offer the UK electorate a choice between remaining within the EU on the basis of a “new settlement” hurriedly being negotiated between the UK and the 27 other EU member states, and leaving the EU forever.

Greater clarity on the settlement proposals was finally achieved on 2 February 2016, with the publication of the draft Decision of the Heads of State or Government, meeting within the European Council, concerning a new settlement for the UK within the EU (the draft Decision). Section E specifically states that the draft Decision will only take effect if the UK decides to remain a member of the EU.

The key proposals

The Draft Decision is, according to the FT, modelled on an agreement reached at a European Council meeting in Edinburgh in December 1992 whereby it was agreed that Denmark would be granted four significant exceptions from the Maastricht Treaty. That agreement was achieved by way of a binding accord signed by all Member States which the FT describes as having ‘acted like a promissory note from EU leaders’ or ‘a form of post-dated treaty change.’

Similarly, the draft Decision will not amend the EU Treaties and there are no details of any specific draft amendments to them. However, it does promise that certain matters, such as the agreement on a “multi-speed” EU, will be incorporated into the Treaties at the time of their next revision. The recital also states that the clarifications in the draft Decision will have to be taken into consideration as being an instrument for the interpretation of the Treaties. These promises and clarifications, which will be contained within a European Council decision signed by all 28 member states, will then be binding on those member states.

Treaty change is, of course, now impossible before 23 June 2016 (the likely Referendum date), since any such change would have to be ratified by national Parliaments and, in some cases, by referendums. It is unclear when the anticipated revision of the EU Treaties will happen in practice, and it may well not happen for some years.

Sovereignty and the new “multispeed” EU

The phrase “an ever closer union among the peoples of Europe”, which first appeared in the 1957 Treaty of Rome, has been restrictively interpreted in the draft Decision. The draft Decision clarifies that references in the Treaties and their preambles to ever closer union should not be interpreted as an equivalent to the objective of political integration, and that they do not offer a basis for extending the scope of any provision of the Treaties or of EU secondary legislation. Further, the phrase “should not be used either to support an extensive interpretation of the competences of the Union or of the powers of its institutions as set out in the Treaties”.

The recital recognises the existence of a “multispeed” EU, whereby different member states will have different paths of integration and those that want to deepen integration will move ahead whilst respecting the rights of other member states, such as the UK, who do not. This is further recognised in Section C, which records that the references to ever closer union in the Treaties are consistent with different member states adopting different paths of integration.

The draft Decision acknowledges that the UK does not agree that further integration is inevitable or desirable.

Competence and subsidiarity

The EU legal system is based on the principle of conferral of powers, whereby the EU is only permitted to act within the limits of the competences (or powers) that have been conferred on it by the member states (Article 5, Treaty on European Union (TEU)). The principle of subsidiarity (Article 5(3), TEU) was introduced by the Maastricht Treaty in order to prevent the EU from unduly encroaching on the role of national governments in areas of shared competence. The EU is only permitted to act if and in so far as the objectives of the proposed action cannot be sufficiently achieved by member states, but can be better achieved at EU level.

The draft Decision reiterates the importance of the principle of subsidiarity, and explains that its purpose is to ensure that decisions are taken as closely as possible to the citizen

In line with its emphasis on the accountability of EU institutions and the repatriation of competences, the draft Decision includes a mechanism which gives a national Parliament 12 weeks to object to draft EU legislation on the basis that it does not comply with the principle of subsidiarity; however, a significant percentage of national Parliaments will have to object for this “red card” to come into play.

Eurozone and non-euro discrimination

The UK and other EU member states outside of the Eurozone have apparently become increasingly concerned about fair treatment by the bloc of countries that have adopted the euro. The draft Decision requires countries within the Eurozone to respect the rights and competences of those member states that are outside it. It also introduces a new form of unlawful discrimination: anti-sterling discrimination! Member states will be prohibited from discriminating based on the official currency of the member state, and any discrimination will have to be justified.

Freedom of movement

The draft Decision will not impede the ability of EU citizens to move freely between member states; however, it does contain a number of measures which are intended to discourage freedom of movement within the EU by certain groups. Such measures are intended to address concerns about so-called “benefit tourism” and marriages of convenience between EU citizens and non-EU citizens. The draft Decision recognises that it is legitimate for member states to adopt measures avoiding or limiting flows of workers, provided that the flow is of such a scale that it has negative effects for both the member states of origin and the host member states.

The Draft Decision notes that the European Commission will submit proposals to amend secondary legislation (Regulation 883/2004 on the coordination of social security systems) so that child benefits can be linked to the cost of living where the child resides.

Further, the European Commission will submit proposals to amend Regulation 492/2011 on freedom of movement for workers within the Union. The latter will be amended to introduce an ‘emergency brake’, a mechanism which would allow a Member State to restrict access to its in-work benefits if an exceptional situation as regards the inflow of workers exists. It will be for the European Commission to determine whether such an exceptional situation exists.

Finally, the Draft Decision records that Member States are able to take action to address cases of contracting or maintaining marriages of convenience with third country nationals for the purpose of making use of free movement to regularise unlawful stay in a Member State.

Interestingly, the draft Decision does not contain any proposal to limit the definition of a worker (for the purposes of Article 45 of the Treaty on the Functioning of the EU and secondary legislation) to workers earning more than about £13,000 a year, a proposal which according to the FT is now said to be “off the table”. Nor does it make any mention of the proposal by the UK government that new EU migrants should be banned from qualifying for in-work benefits and social housing for four years after their arrival in the UK. Continue reading

Case Comment: CD v ST and Z v A Government Department & Ors (C-167/12 and C-363/12)

Michèle Finck, University of Oxford

Human procreation is not longer what it used to be. While medical research has created a number of mechanisms that allow people to engage in sexual intimacy without a resulting pregnancy, it also allows those wishing to procreate but who are unable to do so biologically to have children. IVF and surrogacy in many ways challenge our conception of human procreation. Naturally, the law needs to adapt to these changes.  Surrogacy in particular however raises a number of value-laden questions, which complicates the law’s response to these medical avenues. It is thus not surprising that no homogenous position exists between Member States on this issue.

In the CD and Z cases, the CJEU had to pronounce itself on how to reconcile surrogacy with an existing legal framework on maternity leave that did not account for motherhood resulting from that mechanism. More precisely, it was faced with the question of whether a mother who did not give birth to her own child, born via a surrogate, has a right to maternity leave under EU law. Family law is not a EU competence. Maternity leave is, however, regulated by the Pregnant Workers Directive (PWD) and some aspects arising out of motherhood and employment are addressed by the Sex Discrimination Directive. In Mayr, the CJEU had already clarified that the Sex Discrimination Directive is applicable to workers undergoing IVF that have not yet been successful.

In CD and Z, the Grand Chamber established that, as a matter of EU law, only women who themselves give birth to the child can benefit from maternity leave. Two Advocates General, Wahl and Kokott, issued opinions and came to opposed conclusions. The Court followed Advocate General Wahl in its judgment. Applying Mayr, it found that the PWD only applies to women who are in fact pregnant. The Sex Discrimination Directive was found not to be applicable either as the commissioning mother of a surrogacy agreement would be in the same position as a commissioning father. Having found that the question fell outside of the ambit of EU law, the CJEU also found the Charter of Fundamental Rights to be inapplicable. In the Z judgment, the CJEU further clarified that the Framework Equality Directive and its provisions on disabilities do not apply to women unable to become or carry out a pregnancy as the directive only targets disabilities that render a worker’s involvement in professional life more burdensome, which is not the case for medical conditions that prevent women from getting pregnant or carrying out a pregnancy. Continue reading

After AMS: remaining uncertainty about the role of the EU Charter’s principles

Jasper Krommendijk

On 15 January 2014, the CJEU issued its long awaited judgement in the case of AMS (Case-176/12 [2014]) in which it concluded that article 27 of the Charter of Fundamental Rights of the European Union does not have horizontal effect and can thus not be invoked in a dispute between private parties. This blog entry examines the judgments as well as the -different- Opinion of the Advocate General.

I. Facts and judgment

AMS is an association governed by private law. Its main objective is reintegration of unemployed persons. It challenged and consequently suspended the appointment of Mr. Laboubi as a trade union representative. AMS was of the opinion that this appointment was not required since AMS only had 11 staff members. The French Labour Code only obliges the appointment of a representative for workplaces with more than 50 employees. In its calculation, AMS excluded between 120 and 170 employees with particular contracts (‘accompanied-employment’) from the calculation. This practice was in line with the French Labour Code (Article L. 1111-3). The trade union argued that the latter provision was not in accordance with Directive 2002/14 providing for the consultation of employees. Nonetheless, the trade union could not invoke the Directive, because of the prohibition of horizontal direct effect in legal disputes between private parties, as the case in hand. The trade union thus based its argument on Article 27 of the Charter dealing with workers’ right to information and consultation within the undertaking:

Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices.

In that light the Cour de Cassation in April 2012 referred preliminary questions to the CJEU asking whether article 27 can be invoked in a dispute between private parties. Continue reading

Clarification of the Article 9(2) ECHR qualification? Eweida and Others v the UK

BlogPhotoDr 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[1] were unsuccessful in gaining legal support to wear a long beard or the hijab; Christian claimants such as Mba[2] 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 [2007] 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[3], 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

Carrying Over Holiday Pay When Sick

Claire Darwin

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.

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Come Fly With Me Part II: Holiday Pay under EU Law

Andrew Smith

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:

  1. A fixed annual salary;
  2. A supplemental payment which varied according to the time spent flying BA’s aircraft (calculated at £10 per flying hour); and
  3. 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 ([2009] 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 ([2010] 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”).

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