Dismissal for beard that was “too long” and “too religious” upheld

Back in December 2015 I commented on the decision of the European Court of Human Rights in Ebrahimian v France, which concerned the termination of employment of a health worker at a hospital who refused (on religious grounds) to remove her headscarf when she was on duty at work. By way of a brief recap, state secularism (or laïcité) is a strongly protected principle in French society. That is why you will not hear hymns or carols sung in French schools and there was a big fuss last month when a village commune tried to place a nativity scene in the square in front of the local mairie. It was determined that Ms Ebrahimian, by wearing a symbol of religious affiliation, was breaching her duties as a public official. In its judgment the court held that the non-renewal of her employment contract did amount to an interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights. However, that interference had the legitimate aim of protecting the rights and freedoms of others, pursuant to French law. Accordingly, her claim failed.

A similar case has now surfaced in the Versailles administrative Court of Appeal. A trainee doctor of Egyptian origin was dismissed from his job at Saint-Denis hospital centre in Seine-Saint-Denis because his “imposing” beard constituted an “ostentatious display of religious belief”. The individual concerned declined to deny or confirm that his appearance was intended to be a way to “demonstrate his religious activity”.  On 19 December, the Court of Appeal supported the decision, noting that although the wearing of a beard “even long”, cannot “on its own” cannot (necessarily) constitute a sign of religious affiliation, the “circumstances” entitled the hospital to at as it did.

Is requesting a holiday from July to September manifestation of a religious belief that is capable of protection?

Where do you draw the line with protection of workers on the grounds of religious or philosophical belief? It is a question that I have been addressing in this blog ever since protection from discrimination on these grounds was first introduced. It is logical that there is a limit. For example, if a person’s belief is used as justification for discriminating against others, there can be no case for allowing the alleged victim of discrimination him or herself to engage in discriminatory acts. Another question is whether and if so at what point the manifestation of a religious belief tips over the edge between a “reasonable” accommodation and one which, perhaps for a number of reasons, “just goes too far”. That leads us to the remarkable case of Mr Gareddu, a practising Roman Catholic of Sardinian origin.

Gareddu v London Underground Limited concerned Mr Gareddu’s requests for summer holidays running from 27 July to 2 September (five consecutive weeks). He joined London Underground in 1990 and was entitled to 38 days’ holiday per year (including Bank Holidays). From 2009 to 2013 he took five weeks’ consecutive summer holiday to travel to Sardinia with his two brothers to visit his mother and attend a number of religious festivals, up to 17 per visit. He said that he would attend the festivals for those saints with whom he felt a particular affinity.

In March 2013 a new line manager, Mr Cross, took over. He refused the request for five weeks’ holiday and said that, in future, he would be unlikely to be granted more than 15 continuous days during the summer holiday period. As it happened the 2014 trip was pre-booked and allowed but a holiday request from 27 July to 2 September 2015 was refused. Mr Gareddu contended that this amounted to indirect religious discrimination, contrary to section 19 of the Equality Act 2010.

At a tribunal in December 2015 Mr Gareddu’s claim failed on the basis that the “asserted religious belief requiring attendance at a series of religious festivals during the period 27 July to 2 September” was not made in good faith. While attending religious festivals was a manifestation of religious belief, being required to do so within a specific five-week period was not in itself a specific manifestation capable of protection under the Act.

Mr Gareddu appealed to the Employment Appeal Tribunal on four grounds:

The tribunal took the wrong approach by failing to make findings as to the provision, criterion or practice (PCP) in issue, whether the employer applied that PCP to people with whom Mr Gareddu did not share the characteristic of being a Sardinian Catholic, whether participating at numerous religious festivals was a typical manifestation of the religious beliefs of Sardinian Catholics, whether Mr Gareddu was put at a disadvantage as a result of the PCP and, if so, whether the disadvantage was justified as a proportionate means of achieving a legitimate aim.
The tribunal imposed an unwarranted additional requirement that religion should be the sole or primary motivation for the manifestation in order to benefit from protection under section 19.
It considered an irrelevant factor – the desire to worship collectively with his family – when considering whether he had acted in good faith.
It adopted a perverse construction of Mr Gareddu’s evidence by finding that he had claimed to attend the same 17 events annually and, flowing from this, that he had changed his evidence in the course of the hearing.

Does a ban on wearing headscarves amount to direct discrimination?

In a somewhat surprising decision, given the views expressed in some other recent cases, the Court of Justice of the European Union (CJEU) has decided that a ban on wearing headscarves at work does not (necessarily) constitute direct discrimination with reference to religion or belief. In  Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions the European Court was asked to consider a case which was referred from the Hof can Cassatie (Court of Cassation) in Belgium, where the respondent, G4S, operated from 2006 a policy of neutrality which prohibited the visible wearing of any political, philosophical or religious signs.

Samira Achbita, a Muslim, was employed as a receptionist with G4S in 2003. In 2006 she told her employer that she wanted to start wearing an Islamic headscarf during working hours. After a period of absence due to illness she notified her employer on 12 May 2006 that she was returning to work on 15 May and would be wearing the headscarf. On 29 May the G4S works council approved an amendment to workplace regulations which provided that, with effect from 13 June 2006 “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”. On 12 June Ms Achbita was dismissed because she refused to accept the new policy.

The CJEU noted that G4S’s rule covered any manifestation of political, philosophical and religious beliefs without distinction. The rule was not applied to Ms Achbita in a way which was different from the way in which it would be applied to any other employees. Consequently, there was no direct discrimination.

However, such a prohibition could constitute indirect discrimination if the apparently neutral obligation in fact resulted in people adhering to a particular religion or belief being put at a particular disadvantage. Even if that was the case there could nonetheless be a legitimate aim such as the pursuit of a policy, in relation to customers, of political, philosophical and religious neutrality, provided that the means of achieving that aim were appropriate and necessary. In that case the policy might be maintained, for example, by allowing Ms Achbita to wear hear headscarf at work, but not in a role which involved any visual contact with customers, as an alternative to dismissal. The matter was referred back to the Belgian court for further consideration accordingly.

Also reported at the same time was the case of Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers. In this case, prior to being recruited by Micropole, Asma Bougnaoui was told that wearing her headscarf might pose a problem if she was in contact with customers of the company. Initially Ms Bougnaoui wore a bandana during her internship. Thereafter she wore a headscarf. A customer complained and, relying on the principle of neutrality, the employer asked her to stop wearing the headscarf.

Judgment published in “gay cake” appeal

In May 2015 I reported the decision of District Judge Brownlie, sitting in the Northern Ireland County Court in Lee v Ashers Baking Co Ltd and others, otherwise known as the “gay cake case”. I pointed out at the time that the District Judge was given a very tough call in essentially being asked to rule whether, in terms of “competing discriminations” religious belief prevailed over sexual orientation.

In brief, Gareth Lee, a gay man associated with an organisation called Queerspace made an enquiry with Ashers Bakery about them making a cake with a logo on it. He was told that if he brought in a picture of the logo it could be scanned and placed on the cake. A few days later Mr Lee returned to the shop with an A4 sheet of paper showing a picture of Bert and Ernie from Sesame Street (the logo for Queerspace) with a message below which read “Support Gay Marriage”. About four days later one of the bakery owners, Karen McArthur phoned Mr Lee and told him that they could not fulfil the order because the bakery was “a Christian business”. The business owners confirmed that they considered gay marriage to be sinful. Mr Lee was refunded and went elsewhere for his cake.

In the County Court Judge Brownlie found that the bakery owners understood that Mr Lee was gay and associated with others who were gay. However, what Mr Lee wanted them to do would not require them to support or promote gay marriage. They cancelled the order for a reason that was inextricably linked to sexual orientation and Mr Lee did not share their particular religious and political opinion which confined marriage to heterosexuals. Accordingly there was direct discrimination. The Judge also found that, particularly in the prevailing political climate (concerning whether the Northern Ireland Assembly should vote on same-sex marriage) Mr Lee’s support for gay marriage was a political opinion. Since the bakery owners refused to provide the service requested they had treated Mr Lee less favourably on this basis and this also amounted to direct discrimination.

At the time I observed:
Although the judgment has led to a good deal of debate and statements by some that they will continue to act in the same way as did the Bakery in this case, this is in fact a very well reasoned judgment which reaches what has to be the correct conclusion under the law as it stands. As the judge correctly points out, if that is not what society wants then that is a question for the lawmakers rather than those who apply the law.
The bakery owners immediately announced their intention to appeal and the appeal judgment was published on 24 October.

Judge at EU’s top court backs workplace ban on headscarf

An advocate general at the European Court of Justice has said that companies should be free to ban Muslim women from wearing head scarves if they have a general policy barring all religious and political symbols.

This was said in the run up to a landmark ruling expected from the EU’s highest Court this year. The case involved a woman who worked as a receptionist for the company G4S. After working for the company for three years she decided to start wearing a headscarf for religious reasons. As a result the employee was dismissed given that she had contravened Company policy, which at the time was an unwritten rule.

The employee brought a claim for wrongful dismissal. This was dismissed by the lower courts and further on appeal. However it was referred to the European Court of Justice in Luxembourg to establish whether G4S had contravened the European Union’s anti-discrimination directive.

The Advocate General provided an indication that such a ban would not be deemed direct discrimination and could be justified in order to enforce a policy on religion and ideological neutrality. In arriving at this decision it was said that “whilst an employee cannot leave their sex, skin colour, ethnicity, sexual orientation, age or disability at the door, upon entering their employer’s premises, they may be expected to moderate the exercise of his religion in the workplace.”

If the European Court of Justice’s final ruling agrees with that of the Advocate General, then this will be landmark decision. However, this is not the first time that the contentious issue has come before the European Courts.

Indirect religious discrimination

Can a worker be dismissed for refusing to leave a partner convicted of unrelated criminal conduct with which the dismissed worker was not involved?

 

This question was considered in the recent case of Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination) [2016] UKEAT 0238 15 2903.  The facts of this case were that the Claimant’s (Mrs Pendleton’s) husband was the headteacher of a local school.  The Claimant herself was also a teacher employed at another local school where she was teaching a Year 6 class, had an unblemished disciplinary record and was highly respected both in school and also within the Anglican Christian community (being a devoted and practising Anglican Christian).

 

In January 2013 the Claimant’s husband was arrested on suspicion of downloading indecent images of children and voyeurism.  He was later convicted of these offences and sentenced to ten months’ imprisonment.

 

The Claimant initially left her husband and went to stay with her parents, taking leave from work – at this point the headteacher of the school where she was employed assured her that her position would remain open for when she returned.  Although there was no evidence that the Claimant had any knowledge or involvement in her husband’s actions, the headteacher had also stated that the school couldn’t support her if she stayed with her husband.

 

During her period of leave the Claimant decided that whilst she did not condone what her husband had done, she placed importance on her marriage vows and would therefore stay with him if he could show unequivocal repentance.

 

The school subsequently dismissed the Claimant summarily, stating that she had “… chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role … have been eroded. Furthermore, the choices [she had] made in [her] personal life are in direct contravention to the ethos of … the … School”.

 

The Claimant’s appeal against her dismissal was unsuccessful and she therefore brought claims of unfair dismissal, wrongful dismissal and indirect religious discrimination against the Respondent based upon her religious beliefs as noted above.

 

The Employment Tribunal agreed with the Claimant’s submission that she had been unfairly dismissed, stating that the reason for her dismissal was not some other substantial reason (SOSR) – she had not committed an act of misconduct let alone gross misconduct – but rather the Respondent’s view that the Claimant had used poor judgment in staying with her husband despite him being a convicted sex offender.  The Claimant’s claim of wrongful dismissal also succeeded in light of the above.

 

With regards the indirect discrimination claim however, the Tribunal noted that the claimant held a belief for the purposes of section 10(2) Equality Act 2010, that: “her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith”.  The Tribunal further accepted that the Respondent had applied a provision, criterion or practice of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism, however concluded that the Claimant would have been dismissed whether she believed in the sanctity of marriage or not as another individual in the same situation would have also been dismissed, even if they did not share the Claimant’s religious belief.  The tribunal did comment however that had they needed to consider the question of proportionality, they would have found that the Respondent did not show that the dismissal was a proportionate means of achieving a legitimate aim.

 

The Claimant appealed to the Employment Appeal Tribunal (EAT) on the basis that making her choose between her marriage vows and her career was enough to show she had been placed at a disadvantage, especially given she had been required to act against her religious beliefs.

ECHR rules on principle of secularism versus religious beliefs

For many years France has been renowned for its strict adherence to a secular approach in public services. Known as laïcité, it is an ideology which, for many, goes some way to defining what it means to be a modern French person. The approach follows the formal separation of church and state in 1905. There are no hymns or religious assemblies in schools and absolutely no chance of a nativity play at this time of year.

In 2004 the principle of secularism was challenged when thousands of French women and schoolchildren took to the streets to protest their right to wear headscarves in schools. There were technical rules which ought to have allowed Muslim women to wear headscarves in government run establishments such as schools but attempts to do so frequently led to local protests and bans. In February 2004 President Chirac introduced legislation to ban the wearing of all “ostensible religious insignia” in state schools. The legislation was passed easily, by 494 votes to 36.

Fast forward to 2015 and the same issue has been before the European Court of Human Rights in a case which, remarkably, stems from the non-renewal of a fixed term contract in 2000. In Ebrahimian v France, Ms Ebrahimian is a French national who was born in 1951. She was employed on a fixed term contract as a social worker in the psychiatric department of Nanterre Hospital and Social Care Centre. Her contract ran from 1 October to 31 December 1999. On its expiry the contract was extended by one year to 31 December 2000.

On 11 December 2000 Ms Ebrahimian was informed by HR that her contract would not be renewed because she would not remove her headgear when working and following complaints from patients. In a letter sent by the Director of HR she was reminded of a Government declaration that “while the freedom of conscience of public officials was guaranteed, the principle of the secular character of the State prevented them from enjoying the right to manifest their religious beliefs while discharging their functions; accordingly, wearing a visible symbol of religious affiliation constituted a breach of a public official’s duties”.

Ms Ebrahimian applied to the Paris Administrative Court, as a result of which she was put forward as a candidate for the post of social assistant. However she did not participate in the recruitment process. In October 2002 the Court found that the decision not to renew the contract was in accordance with the principles of secularism and neutrality of public services.

In a further judgment delivered in February 2004 the Administrative Court found that there had been procedural errors. However in May 2005 the decision not to renew the contract was again confirmed. An application to the Versailles Administrative Court to set aside the decision was unsuccessful, as was an appeal to the Administrative Court of Appeal.

Ms Ebrahimian appealed to the European Court of Human Rights in October 2011. In its judgment, issued on 26 November 2015, the ECHR noted that the reason for non-renewal of the contract was her refusal to remove her veil, which was an expression of her affiliation to the Muslim faith. This had to be regarded as interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights.

Victim of caste discrimination awarded £184,000

The Equality Act 2010 does not include specific protection for individuals who are victims of discrimination as a result or associated with their caste. However, it does include provisions for protection from caste discrimination to be added at some time in the future.

Nonetheless a claim based on such discrimination has been brought successfully by Pamela Tirkey against her employers, Mr and Mrs Chandhok, and she has now received compensation amounting to nearly £184,000.

Ms Tirkey was recruited as a cleaner and nanny by Mr and Mrs Chandhok, initially in India and subsequently in the United Kingdom. There is no doubt that her terms of employment were appalling. For example she was paid just 11p an hour. She said that she was treated in a demeaning way and she was more in a state of servility than service. She was required to work 18 hours a day, seven days a week. She was required to sleep on a mattress on the floor, prevented from bringing her bible to the UK, not allowed to contact her family and given a bank account which was controlled by her employers. Her employment ended in November 2012. She brought an employment tribunal claim alleging direct or indirect race discrimination and compensation for discrimination based on religion or belief. Incidentally, the Legal Aid Agency refused funding for representation for 17 months on the basis that the case was “not of sufficient importance or seriousness” and it was “just a claim for money”.

Although the ET1 was very lengthy it made no direct reference to caste discrimination. In May 2013, with the permission of Employment Judge Ward, she amended her claim. Paragraph 53 of the claim initially stated “The Claimant contends that the reason she was treated as complained of was that she is of Indian nationality and/or national origin”. It was amended by adding the word “ethnic” after Indian nationality. This was followed by a new paragraph:
For the avoidance of doubt the Claimant avers that her ethnic and/or national origins includes (sic) but is not limited to her status in the caste system as perceived by the Respondents.  The International Convention on the Elimination of All Forms Racial Discrimination (“ICERD”) prohibits discrimination on the grounds of “descent”:  its principles are adopted by the Race Framework Directives and, it follows, the Equality Act.  Thus s13 EA 2010 must be taken to prohibit caste discrimination.  The Claimant avers that the and/or a reason why she was recruited and treated in the manner alleged was that the Respondents concluded that she was of a lower status to them: this view was tainted by caste considerations.
Ms Tirkey’s family are Adivasi people who are frequently referred to as being of “low caste” although her caste was not expressly pleaded. Although they had not objected to the amendment at the time, Mr and Mrs Chandhok subsequently applied for it to be struck out. Their application was rejected by Employment Judge Sigsworth in January 2014 who stated that “the claim of caste discrimination as set out in the amended statement of claim is not struck out and the claim will proceed to a merits hearing”. That was not strictly correct since there was not an express pleading that there had been caste discrimination; nonetheless its meaning was clear. Mr and Mrs Chandhok appealed to the Employment Appeal Tribunal.

Mr Justice Langstaff was critical of Judge Sigsworth for reading into the ET1 a caste discrimination claim that was not actually there as such. Nonetheless he went on to consider the grounds of appeal. First, it was contended that to allow the claim would amount to “ousting the will of Parliament”. Section 9(5) of the Equality Act (as amended by the Enterprise and Regulatory Reform Act 2013) states that “A Minister of the Crown…(a) must by order amend this section so as to provide for caste to be an aspect of race; (b) may by order amend this Act so as to provide for an exception to a provision of this Act to apply, or not to apply, to caste, or to apply or not to apply, to caste in specified circumstances”. It was initially proposed that there would be a full consultation in 2014 with draft legislation being introduced to Parliament in summer 2015 but this has not happened. Accordingly it was not for a tribunal to anticipate legislation not yet introduced.

Second, judgments which applied a purposive interpretation of the meaning of “ethnic origin” (so as to give effect to what was intended), as in the cases of Jews and Sikhs, were not comparable because Parliament had specifically singled out caste for statutory provision.

Third, the EU Race Directive was not applicable because the case was between individuals and did not involve the State or emanations of the State.

Fourth, the judge as in error to hold that caste could come within the scope of discrimination of the grounds of religion and belief.

Mr Justice Langstaff identified two key questions. First, does the law of discrimination provide a remedy for discrimination in the factual circumstances which the claimant was offering in her claim form to establish in evidence? Second, does the fact that the Equality Act as originally enacted envisaged (but did not implement) the addition of protection from caste discrimination mean that any claim asserting less favourable treatment for “caste reasons” must be precluded until the legislation is amended?

Government announces consultation on devolving Sunday trading rules

On 5 August the Government commenced a consultation on allowing local areas to set their own Sunday trading rules. Larger shops (over 3000 square feet) have been restricted to a maximum six hours and it is felt that this is out of keeping with on-demand shopping available elsewhere, particularly online. The options under consideration are devolving powers to local areas, perhaps through “metro mayors”, or more widely by devolving the powers to local authorities across England and Wales. It is not proposed to alter the rules applying to Easter Sunday and Christmas Day.

From an employment law perspective this proposal raises the question of protection of workers who do not wish to work on Sundays, for religious or other reasons. Shop workers who commenced their employment before 26 August 1994 cannot be required to work on Sundays unless they have opted in to do so or are employed to work only on Sundays. Other employees have the right to give their employer an opting-out notice which, with effect from three months from the date of the notice being served on the employer, gives the employee the right to opt out of Sunday working. The right is absolute and cannot, such as with requests for flexible working, be refused by the employer on the ground of business needs or otherwise.

There is no requirement for employers to pay a higher rate for working on Sundays, although many choose to do so in order to encourage employees to give up their Sundays and meet staffing requirements.

It is often overlooked that employers who have a requirement for staff to work on Sundays must tell them in writing that they have the right to opt out. The written notice must be provided within two months from the commencement of employment and failure to do so means that an employee only needs to give one month’s notice in order to opt out.

Christian who told lesbian work colleague that homosexuality is a sin was victim of discrimination

It seems that barely a month passes without religion and law conflicting in the area of protection from discrimination. I have written recently about the obvious dilemma when seeking to provide protection in respect of conflicting protected rights and by far the most obvious conflict is between religion or philosophical belief and the others. This month provides another very clear example, and one which should assist employers when confronted with this very tricky issue.

In Mbuyi v Newpark Childcare (Shepherds Bush) Limited, a case which was heard in the Watford Employment Tribunal, the claimant was a Belgian national and an evangelical Christian who worked for the employer from April 2013. Her position as a nursery assistant at the employer’s Shepherds Bush site was made permanent in September 2013. Following her permanent appointment there were a few apparently minor issues. For example she said to another employee (referred to as LP in the proceedings) that she had “hair too short for a woman”. On 3 or 4 September Miss Mbuyi was alleged to have said to LP “Oh my God, are you a lesbian?”. LP was a lesbian and living in a civil partnership. It appears that there were no significant incidents thereafter until, following a return from sickness absence, Miss Mbuyi gave LP a bible as a gift. In the bible Miss Mbuyi had written a note referring to LP’s struggle or difficulties. In the run up to Christmas the staff held a secret Santa gift exercise. Miss Mbuyi gave LP a book written from a Christian perspective by Joyce Meyer. The book contained a similar message to that written in the bible. Subsequently, in early January, Miss Mbuyi and LP were discussing the church that the claimant attended. She pointed out that, according to the church’s teachings, homosexuality is a sin. It appeared that she said this because she thought that LP would view her sexuality as a bar to her attendance at the church. LP was upset by the discussion and left the room. Due to her upset she was sent home.

Miss Mbuyi was already required to attend a disciplinary meeting as a result of lateness. After her conversation with LP the scope of the disciplinary meeting was extended so that it covered lateness and “alleged discriminatory conduct in regard to co-workers”. At the outset of the hearing Miss Mbuyi was informed that dismissal was a possible outcome. In her version of events Miss Mbuyi stated “During the conversation about my church Laura asked me if she would be welcomed at church and if God is okay with what she is doing. I believe in God and as a Christian I follow the bible. So I told her that God is not okay with what you do”. She went on to say “I can only tell the biblical truth. I am not a homophobic person but I believe homosexuality is a sin and God doesn’t like that”.