Tag Archive: ECJ

Scope for ban on Islamic headscarves in the workplace remains limited

The European Court of Justice has decided that an internal rule which prohibits the visible wearing of any religious sign does not constitute direct discrimination based on religion or belief. Although such a rule might constitute indirect discrimination, it may be objectively justified.

Facts

Ms Achbita (A) was employed, in Belgium, as a receptionist by G4S and was involved in providing reception services for customers.  At the time of A’s recruitment there was an unwritten rule within G4S prohibiting employees from wearing visible signs of political, philosophical or religious belief in the workplace.   When A informed her employer that she intended to wear an Islamic headscarf at work,  she was told not to as this was contrary to the position of neutrality adopted by G4S in its contact with customers.    Shortly after, the G4S works council approved a change to the workplace regulations which provided that ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’. A was dismissed because she insisted on wearing the Islamic headscarf at work. She challenged her dismissal in the Belgian courts, which referred the matter to the ECJ.

Ms Bougnaoui (B) worked at Micropole, in France, initially as an intern and then as an employee. Before the start of her internship,  she was told by a representative of the employer that wearing an Islamic headscarf at work might pose a problem when she was in contact with customers.   B did wear an Islamic headscarf at work. Following a complaint from a customer to whom B had been assigned, Micropole reaffirmed the principle of the need for neutrality as regards its customers and asked B not to wear the veil in future. B objected and was dismissed. She challenged her dismissal in the French courts, which referred the matter to the ECJ.

The ECJ considered both cases together.

G4S decision

The Court decided that, as G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs, it covers any manifestation of such beliefs without distinction. All employees are treated in the same way and are required, generally and without differentiation, to dress neutrally.   There was no evidence that the internal rule was applied differently to A as compared to other G4S employees.

The Court concluded, therefore, that the rule is not directly discriminatory as it does not introduce a difference of treatment that is directly based on religion or belief.

The Court also considered the issue of indirect discrimination. It found that the employer’s internal rule could be indirectly discriminatory if the obligation it imposes, although apparently neutral,  in fact results in persons of particular religion being put at a particular disadvantage. Such indirect discrimination may, however, be objectively justified by a legitimate aim, provided that the means of achieving that aim are appropriate and necessary.

In terms of G4S’s rule, the ECJ gave guidance on the matters that the Belgian court should consider when assessing objective justification. According to the ECJ –

  • the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality is a legitimate aim, notably where the only workers involved are those who come into contact with customers;
  • the ban on the visible wearing of signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is pursued in a consistent and systematic manner;
  • the Belgian court will have to ascertain whether the prohibition covers only G4S workers who interact with customers. If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued; and
  • the Belgian court should also ascertain whether it would have been possible for G4S to offer A a post not involving any visual contact with customers, instead of dismissing her.

Micropole decision

The ECJ decided that the willingness of an employer to take account of the wishes of a customer no longer to have services provided by a worker wearing an Islamic headscarf cannot be considered to be a ‘genuine and determining occupational requirement’ for discrimination purposes.   The Court pointed out that there are very limited circumstances in which a characteristic related to religion can constitute a genuine and determining occupational requirement. This concept refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out and does not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of the customer.

Comment

Although the decision of the ECJ does allow some scope for an employer to operate a dress code which requires religious neutrality,   in reality that scope is extremely limited.   Such a code is only possible where its use is in pursuance of a legitimate business aim and, further, it must be a proportionate means of achieving that aim.   Employers should also be aware that dress codes can give rise to risks of other types of discrimination, for example sex or disability discrimination. Practical points to consider in reviewing or implementing a dress code are –

  • Addressing why the dress code is necessary by identifying a legitimate aim;
  • Considering the scope of the code and what the justification is for its different elements;
  • Deciding whether employees or employee representatives should be consulted about the code;
  • Ensuring that the code is applied consistently and systematically across the business; and
  • Considering what flexibility might be allowed within the code, where exceptions might be possible and how any flexibility can be managed consistently across the business.

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Brexit: Update on the future of ECJ employment case law and directly effective employment rights

As we have reported previously,  the Government’s position in relation to the future of workers’ rights is that, through the mechanism of the “Great Repeal Bill”,  the UK’s EU derived employment laws will remain in place at Brexit and that workers’ existing rights will continue to be guaranteed in law.   This has been confirmed by both the Prime Minster, Theresa May and Brexit Secretary,  David Davis.

Although this makes the position clear as regards employment rights which are enshrined in both primary and secondary UK legislation,  less certain is what the post-Brexit status will be of directly effective EU Rights, such as the right to equal pay contained in the Lisbon Treaty, and also of the relevant case law of the European Court of Justice (ECJ).

The ECJ has been responsible, throughout the UK’s membership of the EU, for interpreting employment rights and, while occasionally their judgments have been incorporated into UK law by consequent amendments to legislation,  more usually the judgments are given effect by the UK courts following the ECJ’s stance in their own case law decisions.

In some instances the ECJ’s judgments have arguably extended the scope of certain employment rights. The examples which are probably most unpopular currently with UK employers relate to holiday,  where the ECJ has ruled that workers continue to accrue holiday while on sick leave and that holiday pay should cover not just basic pay, but all elements of remuneration.

The UK’s system of precedent means that pre-Brexit UK court judgments which follow ECJ reasoning will remain binding on the lower courts post-Brexit.    However,   because,  post-Brexit,  the UK courts will no longer be bound to follow existing and future ECJ judgments,  there is a risk of contentious judgments,  like those on holiday pay,  being re-litigated by employers with a view to persuading the higher UK courts, once they are no longer bound by ECJ precedent,  to reach a different decision.      Contrary to the Government’s stated intentions, this does appear to raise the potential for certain “existing” employment rights to be eroded post-Brexit.

In early November, the House of Commons debated “Exiting the EU and workers’ rights”.  During this debate the Government appeared to confirm that its intention is to ensure that both directly effective EU employment laws,  as well as judgments of the ECJ,  will be given effect in UK law at the point of Brexit.   In closing the debate,  David Jones,  Minister of State for Exiting the European Union,  stated that “[On] the issue of what will happen to EU case law and judgments of the European Court of Justice, I wish to make it clear that the starting position of the Government is that EU-derived law, from whatever quarter,  will be transferred into United Kingdom law in full at the point of exit”.

This, however, is a slightly different stance to that taken by Jesse Norman, the Minister for Energy and Industry when addressing the House of Lords EU Energy and Environment Sub-Committee this week.    Mr Norman confirmed that ECJ judgments already codified into legislation would continue to have force via the Great Repeal Bill,  but gave no indication that non-codified judgments would be captured via this process.  His view is that “it may be open to [UK] judges to follow or not follow those”.

In conclusion,  although it appears that the Government intends to preserve all existing EU employment rights including those derived from case law,  it is unclear how this will be brought about in practice.

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Brexit: what are the implications for employment law?

The possibility of a UK exit from the EU – colloquially known as a Brexit – is high on the political, business and media agenda. On 23 June the UK will hold an in/out referendum to determine whether we should remain a member of the European Union. Whatever the result, the vote is a historic moment, which could have seismic implications for the economies of many European countries and transform the UK’s future role in world affairs. Against this backdrop, the impact of a Brexit on UK employment law is a relatively minor issue in a much wider debate, but bears consideration. What are the key questions for employers?

The legal implications of a Brexit turn on both the mechanics of exit and the model for any replacement UK / EU relationship, both of which are currently unknown.  We do know that any formal exit would not happen for at least two years following a vote to leave. In the event of an ‘out’ vote, the UK would invoke Article 50 of the Treaty on the European Union and notify the European Council that it intends to secede from the EU; a controlled and negotiated process developing over the following two years would follow. In the immediate aftermath, therefore, a vote to leave the EU is unlikely to have a significant impact on UK legislation.

Following a vote to leave, there would be a number of options for the future relationship between the UK and the EU, including:

  • The Norwegian model: Membership of EEA and EFTA (access to the single market);
  • The Swiss model: Member of EFTA; many bilateral agreements;
  • The Turkish model: join the EU Customs Union, access the EU market under WTO rules; and
  • Possibly, a bespoke UK model.

It is possible that the UK would seek to follow the Norwegian model and become part of EFTA and the EEA in order to continue favourable trading relations with countries in Europe.   As part of this organisation,  under its current rules,  the UK would remain subject to most aspects of EU social and employment policy given that EEA member states are bound by, for example,  the Acquired Rights Directive,  the Collective Redundancies Directive,  the Working Time Directive and the Agency Workers Directive. This would have a knock-on impact on the UK courts as the EFTA Court (which fulfils the judicial function within the EFTA system, interpreting the EEA Agreement with regard to the EFTA States) is bound by ECJ case law.  As such,  ECJ case law would continue to have a significant influence in the UK courts. In this scenario, the impact on UK employment law would be likely to be minimal in the short to medium term.

The Swiss model is unlikely to be an attractive option, as it involves complex negotiation of bilateral trade agreements, under which the EU would be likely to require the UK to adhere to many aspects of EU employment policy.

In the event of an alternative relationship, the UK Government may have more freedom to depart from EU social and employment policy, although that may come at a cost. A Brexit would make it more difficult to recruit individuals from and move them within Europe and, as such, the talent pool available to UK business would diminish.  Visa requirements could make it difficult to bring overseas talent and skills into the UK and individuals may prefer to be located within the EU given the unrestricted movement that would afford to them.   This impact would be felt across a range of sectors including, for example,  financial services,  technology,  hospitality and construction. Depending on the relationship negotiated, however, legislation could remain largely stable, with implemented Directives and existing Regulations remaining (even then, treaties would still be affected and the Supreme Court would become the highest court for interpretation). Alternatively Regulations could fall away but Directives already enacted in domestic law remain.  EU driven domestic legislation might be replaced on a case by case basis – although presumably not without sufficient warning.

The UK Government would be unlikely to fully repeal existing employment laws which implement EU requirements for a number of reasons including that:-

  • A raft of wholesale changes to employment law would lead to unwelcome confusion and uncertainty for employers as well the potential for significant cost in complying with a revised regime
  • Many of the rules which flow from Europe reflect accepted standards of good industrial relations;   for example, requiring employers not to discriminate and providing for rest breaks and paid holiday;
  • Even if it leaves the EU, it is expected that the UK will nonetheless remain in a significant trade relationship with the rest of Europe (whether as an EFTA member of the EEA or through bilateral trade agreements).   Any of these relationships will only be possible if the UK retains a playing field which is largely level with the rest of the EU in terms of employment law regulation; A far more likely outcome of a Brexit therefore is that the UK employment law regime is left largely as is, but that the Government legislates to remove or change some aspects of the existing regulation which are particularly unpopular with British employers.   The main examples of EU employment regulation cited by UK business as burdensome and which would therefore be likely to change are (i) the inability to harmonise employment terms after a business transfer; (ii) the requirement to ensure pay parity for agency workers after 12 weeks; and (iii) various aspects of the working time rules including record keeping and holiday pay.

In terms of ECJ case law, even assuming a full exit of the UK from the EU and no continuing EEA/trade relationships (which is unlikely),   UK employment tribunals would not be able to immediately completely ignore pre-existing ECJ case law.   ECJ judgments subsequently become incorporated into UK law, either by legislation being amended to take an ECJ ruling into account or through the a UK court following the ECJ’s stance in its own case law, as it is currently obliged to do.     The UK system of precedent means that past decisions remain binding on the lower courts and, even if there is a full exit from the EU, it will be largely impossible for an employment tribunal to depart from existing case law.   This will only change gradually over time, if and when the higher courts (EAT, Court of Appeal or Supreme Court) reconsider and change the established position on any particular aspect of employment law as a result of no longer being required to apply ECJ judgments. Further,   as referred to above, rather than the UK making a wholesale move away from its existing employment law regime post-Brexit, it is more likely to tinker with existing laws which will, therefore, mean that many aspects of our regulation would remain based on EU directives.   In these circumstances, the UK courts are likely to continue to view judgments of the ECJ as being persuasive in authority, albeit not binding.

If the ultimate outcome is that the UK becomes a member of the EEA, we would continue to be bound by both the Acquired Rights Directive and the Agency Workers Directive.   As such, the scope for changing the UK’s rules in these areas would be extremely limited although the Government may make moves to change those aspects of the UK implementing regulations which, arguably, “gold plate” the strict requirements of the relevant EU directives.Assuming a full EU exit, no EEA membership and no trade agreements,   technically the UK Government would be free to amend or repeal the TUPE and Agency Workers regimes in their entirety.   In reality, however, this is an unlikely outcome.   A large number of existing commercial agreements, particularly outsourcing arrangements, are based on the understanding that TUPE will apply to transfer staff in the event of a business change.   Removing this regime or changing it significantly would risk causing chaos and creating uncertainty for the business community and, as such, would not be a welcome measure.   Although the Agency Workers legislation is arguably less popular with employers,   entirely removing the protections for this category of workers, which have started to become embedded in the UK’s employment law landscape, would be politically difficult and would be likely to face strong resistance from the Trades Unions.   Watering down, rather than removing, agency worker rights is therefore a more likely outcome.

The UK’s legal system has become tightly enmeshed with that of the EU, and the unravelling process in the event of Brexit is likely to be long, complex and expensive. If the UK does vote to leave on 23 June, it is likely to be a long time before the full implications of Brexit become clear.

 

 

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ECJ ruling on working time for workers with no fixed base

The ECJ has handed down judgment today in Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO.) v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA, a working time decision. The ECJ held that the journeys made by workers without fixed or habitual place of work between their homes and the first and last customer of the day constitute working time.

In this Spanish case, the employer carried out a business installing and maintaining security systems. The company’s technicians installed and maintained security systems in homes and on industrial and commercial premises within the geographical area assigned to them. The workers had use of a company vehicle for travelling to and from home to the first and last customer of the day, as well as between customers during the working day. Their work was coordinated by a central office in Madrid. The workers also travelled to pick up parts and equipment to the offices of a transport logistics company near their home. The company calculated the technicians’ working time as starting when they arrived at their first customer and ending when they left their last customer. Time spent travelling to and from the first and last customers to home was counted as a rest period.

In the case of workers with a fixed place of employment, it is established law that travel to and from the workplace is not working time. The Spanish court made a reference to the ECJ to determine the position in respect of workers with no fixed place of work.

Following the opinion of the Advocate General, the ECJ held that in circumstances where workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes working time.

The Court noted that ECJ case law has consistently defined any period during which the worker is at work, at the employer’s disposal and carrying out his or her activity or duties as ‘working time’. It agreed with the Advocate General that the workers’ journeys were a necessary means of providing their technical services to customers and that they had to be regarded as carrying out their activity or duties during that journey time. As the employer set the list and order of the customers for the workers to visit, and the appointment times, the workers were not free to use their travelling time as they pleased and so were at the employer’s disposal. Further, as travelling is an integral part of being a worker without a fixed or habitual place of work, it could not be said that their ‘place of work’ was restricted to the physical areas of their work on customers’ premises. Consequently the travelling time has to be regarded as ‘working time’ under the Directive.

This is likely to have significant implications for employers in the care sector in particular, where workers visit clients in their homes, but will also affect other businesses employing workers with no fixed base. The ECJ specifically rejected the UK Government’s argument that the conclusion in this case would lead to an inevitable increase in costs for the employer, suggesting that the employer remains free to determine the remuneration for time spent travelling between home and customers. Travel time to and from work is not currently counted as working time for the purposes of the National Minimum Wage and this position is not directly affected by this decision as minimum wage rates are a matter for national law. However, employers may face difficulties with complying with rules on rest breaks and the maximum working week which may lead to increased cost, and they are likely to face pressure to pay workers for this additional working time.

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Obesity can be a disability: AG gives opinion in ECJ case

As we reported in Be Aware on 1 July, the ECJ was recently asked in the case of Kaltoft v Kommunernes Landsforening to consider whether obesity should be regarded as being a disability for the purposes of disability discrimination.

On 17 July the Advocate General gave his opinion in the case. The AG said that whilst there is no general principle prohibiting employers from discriminating on grounds of obesity in the labour market, severe obesity can be a disability covered by the protection against disability discrimination if it, in interaction with various barriers, hinders full and effective participation of the person concerned in professional life on an equal basis with other workers. By severe obesity the AG was referring to morbid obesity, meaning a BMI of 40 or more (around 21 stone for an average height man).  If an individual is classified as morbidly obese, they may be disabled if the obesity has a real impact on their ability to participate in work. 

This could have implications for both employers and service providers particularly in relation to the duty to make reasonable adjustments, if the ECJ takes the same view. We will be monitoring the case and will report further when the ECJ gives its judgment.

Permanent link to this article: http://www.dlapiperbeaware.co.uk/obesity-can-be-a-disability-ag-gives-opinion-in-ecj-case/