A few months ago, the European Court of Justice held in IX v WABE eV; MH Müller Handels GmbH v MJ that a rule forbidding workers from wearing any visible sign of political, philosophical or religious belief in the workplace did not constitute direct religion or belief discrimination under the EU Equal Treatment Framework Directive, provided that the rule was applied in a general and undifferentiated way. Nor did it constitute indirect discrimination, if the rule could be justified by an employer’s genuine business need to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, in order to take account of their legitimate wishes.
These involved cases were brought by two German muslin women, who refused to abide by their employer’s rules that they do not come to work wearing their religious scarves/hijabs. The ECJ determined that this rule did not constitute direct discrimination provided that there was no differentiation of religious beliefs and all workers were treated in the same way, i.e., it was a neutral provision. Although such a rule caused particular issues for these women who observed religious rules requiring them to wear a hijab, such a rule was not discriminatory because it was applied to everyone and did not differentiate.
It also concluded that whether the indirectly discriminatory effect of the rules could be justified by the employer’s desire to pursue a neutral policy of political, philosophical and religious with regard to its customers or users, in order to take account of their legitimate wishes, it held that desire was not enough to establish objective justification. Justification can only be established if the employer can demonstrate that it has a genuine need for the policy. The ECJ went on to note two further conditions for objective justification: the rule must be appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which means that the policy must be pursued in a consistent and systematic manner; and the rule must be limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid. Both cases were remitted for determination by the national courts.
While ECJ decisions are no longer binding on UK courts and tribunals following Brexit, the UK courts may ‘have regard’ to it ‘so far as it is relevant to any matter’ it. With that in mind, it will be interesting to see what the tribunal decides, following a recent case held last week in the Employment Tribunal. A nurse is suing Croydon Health Services NHS Trust for religious discrimination and breach of her human rights, as a result of being bullied for not removing or covering up a Christian cross necklace she wore.
Mary Onuoha, an operating theatre specialist, who told the tribunal that she was “treated like a criminal” for a wearing a small gold cross. Her legal team drew comparisons with other employees who have been allowed to wear saris, turbans and hijabs, in demonstrating that was being treated wholly differently. In 2019, matters become so bad that Ms Onuoha was given a final written warning and was told that if she returned to clinical areas with the cross on “security would become involved” All of which to me, seems very heavy handed. Ms Onuoha feels that she should not have to compromise her faith, neither should other Christian NHS staff especially when others have not been penalised for following their religious beliefs.
We will look forward to receiving the outcome of this decision which will consider whether or not there was a neutral policy which can be objectively justified or if Ms Onuoha was discriminated against because of her faith and thus singled out. If there was neutral policy, and this is proven, based on the ECJ decision, it seems that this claim may well fail.
This blog was written by Anita Vadgama, legal director for didlaw.
