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Visible Religious Symbols: European Court Ruling

Volume 623: debated on Wednesday 15 March 2017

(Urgent Question): To ask the Parliamentary Under-Secretary of State for Women and Equalities if she will make a statement on the recent Court of Justice of the European Union ruling allowing employers to ban workers from wearing religious dress and symbols in the workplace.

I thank my right hon. Friend for raising this important issue and for giving the Government an opportunity to inform and, I hope, reassure the House about the two Court of Justice of the European Union judgments issued yesterday. The Government are completely opposed to discrimination, including on grounds of gender or religion, or both. It is the right of all women to choose how they dress, and we do not believe that the judgments change that. Exactly the same legal protections apply today as applied before the rulings.

In both the Achbita case and the Bougnaoui case, the judgment was that there was no direct discrimination, but that there was some discrimination. A rule is directly discriminatory if it treats someone less favourably because of their sex, race, religion or whatever. A rule is indirectly discriminatory if, on the face of it, it treats everyone the same, but some people, because of their race, religion, sex and so on, find it harder to comply than others do. Indirect discrimination may be justifiable if an employer is acting in a proportionate manner to achieve a legitimate aim.

The judgments confirm the existing long-standing position of EU and domestic law that an employer’s dress code, where it applies to and is applied in the same way to all employees, may be justifiable if the employer can show legitimate and proportionate grounds for it. Various cases show that such an employer needs to be prepared to justify those grounds in front of a court or tribunal if need be. That will remain the case and that is the case with these judgments, which will now revert to the domestic courts.

I am aware of some concern that the judgments potentially conflict with the judgments of the European Court of Human Rights, particularly in the case of Nadia Eweida, the British Airways stewardess banned from wearing a small crucifix but whose case the ECHR upheld. We do not believe that the different judgments are in conflict. Both the CJEU and the ECHR were trying to assess the balance in each case between the religious needs of the employee and the needs of the employer. In Eweida, the assessment favoured the employee; in another ECHR case, and also in the Achbita case, the assessment favoured the employer. We will still take action to ensure that the current legal position is set out. We will be working with the Equality and Human Rights Commission to update guidance for employers on dealing with religion or belief in the workplace. The guidance will be revised to take account of the CJEU judgments, too. We will make it absolutely clear to all concerned that the Equality Act 2010 and the rights of women and religious employees remain unchanged.

Like any judgment of the CJEU, for the time being, Achbita and Bougnaoui need to be taken into account by domestic courts and tribunals as they consider future cases. The law is clear and remains unchanged. However, because of our absolute commitment to ensuring that discrimination and prejudice are never encouraged or sanctioned, we will keep the issue under very close review.

In this country, we have a long tradition of respecting religious freedom and, frankly, many people will listen in disbelief to the Court’s ruling that a corporate multinational such as G4S risks having its corporate neutrality undermined by a receptionist in Belgium wearing a headscarf. At what point did the law decide that expressing religious belief through a cross, a turban or a headscarf is a threat to organisational neutrality? Here in the House of Commons, our staff pride themselves on their neutrality, but will such organisations be forced to consider this new ruling? If not, in what circumstances could an organisation legitimately require such neutrality from its workers? Surely there are serious potential implications for those who deliver public services.

One group is specifically affected—Muslim women, who already experience twice the unemployment rate of the general population. The Government need to monitor the situation carefully to ensure that employers do not use the ruling to effectively exclude thousands of Muslim women from the workplace.

We are leaving the EU soon, but the ruling will potentially continue to influence the way in which the Equality Act is interpreted by the courts. Parliamentarians need clarity, workers need clarity and employers need clarity, and we want to ensure that this ruling does not have damaging consequences for freedom of religious belief in our country.

My right hon. Friend is right to raise this case. As I said, the UK has some of the strongest equality legislation in the world and our laws give people robust protection from religious discrimination in the workplace. It is and remains unlawful to directly discriminate against someone because of their religion or to create spurious rules that would prevent them from wearing religious clothing or jewellery. Employers can enforce a dress code, but it must be for proportionate and legitimate reasons, and must apply equally to all employees. If an employer wants to have a neutral dress code with no religious symbols being worn, it must apply equally to all employees and all religions.

Dress codes are a matter for individual employers and will depend on the particular type of work involved, the environment and the safety considerations, above all. The CJEU has found that these cases would constitute indirect discrimination and has referred them back to the national courts to consider whether, based on the specifics, they would be unlawful. The UK’s legal position has not changed. The EHRC has already published guidance for employers on religion and belief in the workplace, and we will work with it to update that guidance to take account of these rulings and to carefully explain how they should be interpreted in UK workplaces. But I must reiterate that this Government are absolutely committed to supporting people into work whatever their background, making Britain a country that works for everyone and not just the privileged few.

I thank the right hon. Member for Basingstoke (Mrs Miller) for raising this important issue. The ruling is not as clearcut as press articles would have us believe, but it does raise real concerns about religious freedom in the workplace, including for Muslim women who choose to wear the hijab. When making their ruling, the judges relied on the concept of workplace policies that require neutrality. Neutrality has specific cultural significance in Belgium and other European countries, based on their particular meaning of secularism, which does not resonate in Britain. Does the Minister agree that this concept of neutrality is illogical, as a customer, patient or service user could not make a valid assumption as to the religious persuasion of a company, or perceive that a company is particularly favouring one religious group or another, by virtue of how its employees dress?

Women and men must be allowed to choose their expression of faith. Simply put, this judgment is not consistent with the British liberal and human rights tradition. Of real concern are the implications that this may now have for faith communities. Already, the far right across Europe is rallying on the judgment. I thank the Minister for making a clear statement today that people can express their faith, in a professional manner, in the workplace, but can she confirm that this Government believe that preventing women from wearing the hijab, as exampled in this case, is simply and unconditionally wrong?

What is the Government’s position on the concept of a dress code for staff that requires neutrality in the workplace? I am pleased that the Minister has confirmed that she will be working with the EHRC on updating the guidance to employers on this ruling. Will she confirm that it will reinforce the rights of employees in the UK to express their religious freedom?

G4S holds a number of Government contracts. Has the Minister reinforced with G4S, the employer in this situation, its employees’ rights to wear clothing necessary for their religious practice in the UK?

It would be helpful if I were to talk a little about the background to this, in order to aid our wider understanding. We are dealing with two cases here. The first, Achbita, was about whether a dress code banning the outward expression of personal belief was directly or indirectly discriminatory against a female Muslim who was sacked for wearing a headscarf. The second, Bougnaoui, concerned the same point, but it also raised the issue of whether a customer’s request not to be served by an employee wearing a headscarf can be a genuine occupational requirement. The ruling confirmed the current position under EU and domestic discrimination law: that a dress code that applies and is applied in the same way to all employees does not constitute direct discrimination but may constitute indirect discrimination. However, importantly, an employer’s willingness to take account of a customer’s wishes about staff wearing religious dress does not constitute a genuine occupational requirement. It is very important to point that out.

As I have stated, employers can enforce a dress code, but it must be proportionate and legitimate, and must apply equally to all employees. If an employer wants a neutral dress code with no religious or political symbols being worn, that must equally apply to all employees and religions. However, it remains unlawful to directly discriminate against someone because of their religion and to create any kind of spurious rules that will prevent the wearing of religious clothing or jewellery. The Government take this very seriously. Hate crime of any form will not be tolerated. The Government will not stand by and let that happen. We are very clear about where we stand on this. People will be protected in their workplace and, as I said, we will be reinforcing the guidance on religion and belief in the workplace which the EHRC has published. We will be making sure that employers are well aware of their responsibilities in that way.

I am very pleased to hear that the Government are going to issue new guidelines. I hope that they will reflect British values, which demand that Muslim women should be able to wear the hijab, that Sikhs should be able to wear the turban, that Jewish people should be able to wear a kippah and that Christians can wear a cross. If we remove that basic right, the nature of British values changes. Any company that wants to be neutral and to deny its employees the ability to express their religion takes away from those employees and is fundamentally not British.

My right hon. Friend is absolutely right; the Government believe, and I believe, that people need to be able to feel strong in their religious identities, and we are ensuring that the voices of people of faith can be heard up and down this country. As now, any dress code or dress ban that an employer imposes must be for legitimate and proportionate reasons, and the employer must be prepared to defend it before a court or tribunal if necessary. Ultimately, those dress codes are for individual employers to decide on, but we are clear that any form of discrimination on the grounds of religion or faith will not be tolerated and is unlawful.

This is an incredibly sensitive issue which will cause concern across these isles. It is clear that right-wing leaders across Europe have already attempted to misrepresent the ruling for their own ends, so I hope that we will see clear leadership from the UK Government to counter that rhetoric and ensure that it does not take hold here.

What the Minister has already said and what the Prime Minister said earlier is a good start. We should be absolutely clear that women and men should be free to choose what they wear, and we certainly should not be discriminatory on the basis of religion. The Court of Justice judgment ruled that uniformity is key in any workplace policy on religious or political neutrality, and that this cannot be applied on an ad hoc basis. However, there are concerns about the potential for this to be hijacked by some for the purpose of anti-Muslim or similarly intolerant sentiment. If Police Scotland can decide to include the hijab as part of its uniform, what action will the UK Government take to ensure that discrimination against individuals of any religion will not be tolerated in the workplace?

The Prime Minister was very clear that what a woman wears is her choice and no one else’s. Obviously, there is a clear difference in the following respect: it would be ridiculous to presume that, if someone wanted to wear loose clothing or dangling jewellery when working in or around machinery, it was sensible to allow them to do so in contravention of any health and safety considerations. But in normal day-to-day jobs it would seem to be very ill-advised to prevent people from wearing the items of clothing that reflect their religious faith or belief.

On what the hon. Gentleman says about the far-right response, let me say that we have one of the strongest legislative frameworks in the world to protect communities from hostility, violence and bigotry. We keep these policies under review all the time, as we want to ensure that they remain effective and appropriate in the face of any kind of new and emerging threats. He must be assured that those who perpetrate hate crimes of any kind will be punished with the full force of the law.

I am heartened by the Minister’s robust response to this. My experience in France has been that the attitude there towards the wearing of the hijab has exacerbated problems between different sections of the community. Just the other day, I saw a Sikh police officer wearing a turban, which just demonstrates our tolerant attitude in this country. So I commend the Minister and ask—as I must do to keep in order—that she maintains this position.

Multiculturalism and the multiplicity of different faiths and religions in this country is one of our great strengths. We should recognise that many people follow their faith and that some people follow none, but we want a society that treats people equally and with respect, whatever their faith happens to be, or if they have none.

The Minister will appreciate how distressing the ruling is, not only for British Muslim women who choose to wear the hijab but for many other faith communities. She will be aware that G4S, the British company involved, has form. It presided over a shambolic temporary jobs arrangement during the Olympics, when the British Army had to be brought in. First, will G4S’s Government contracts be reviewed, because what it has done is unacceptable and un-British? Secondly, once the Government have worked with the EHRC to reform the guidance, will the Minister report to Parliament to reassure us that, as Members on both sides of the House have stated, British values, which are distinct from the ruling, are upheld, and that the right of women to wear what they wish to wear in the workplace, within reason and with reasonable accommodation, is upheld?

The hon. Lady is absolutely right to point out that women should be respected; indeed, all workers and their religious individuality should be respected. Employers have a right to enforce a dress code, but she is right to point out that certain employers interpret that right differently from others. We certainly take religious tolerance, and tolerance more generally, into consideration when considering Government contracts. This situation is a shame, because we are very tolerant in this country and we are making massive progress. Some 45% more Muslim women were in work in 2015 than in 2011. We know that there is much more to do to ensure that no one is left behind, but we are committed to supporting people in their workplace, whatever their background, which is why it is so important that this issue was brought to the House today.

Will the Minister confirm that in this country a member of an airline’s cabin staff or a receptionist has the right to express their faith freely by wearing a cross or a headscarf, and that that cannot be supressed by any so-called neutral dress code?

Yes, my hon. Friend is absolutely right that people are entitled to express their religious thoughts or beliefs in what they wear. It becomes an issue only if there is some kind of health and safety aspect. As I have said before, companies are entitled to enforce their own dress code, but it is very clear that that dress code must apply equally to all employees, whatever their faith, religion or gender, and the Government are keen to promote that.

I am very troubled by the judgments. If the provisions of the CJEU’s judgments are held to be directly effective, they can be relied on by employers in the UK without further ado. In my estimation, that would be deplorable. Will the Minister confirm that the Government are keeping open the option of legislating—and, indeed, the option of introducing emergency legislation—to make sure that the United Kingdom’s very fine laws on discrimination, which uphold one’s right to manifest one’s views and religion, are not undermined by the CJEU? The assurance that the Government will turn to legislation, should the need arise, would be very helpful.

It is important to point out that the CJEU judgement is advice that goes back to the nations that brought forward the cases. Each country has the right to enforce the judgment in the way it sees fit. I am confident that the UK has some of the strongest equalities legislation in the world, including the Equality Act 2010, which enshrines equality in domestic law. Nevertheless, we will always keep that under review to ensure that people continue to be protected in the best possible way.

Mr Speaker, I apologise: my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) asked the question I was going to ask, and I did not want to detain the House any longer.

Although the judgment applies to men and women, does the Minister agree that it sends an appalling message, particularly to Muslim women in places such as my constituency? Will she reassure me that she will take tangible action to reassure specific faith communities that the United Kingdom certainly will not go down this route?

Yes, that is really important, and my hon. Friend is absolutely right to point it out. The Government are working so hard to tackle the barriers faced by different black and minority ethnic groups. We are engaging Muslim communities through a number of faith and integration projects; we are developing a new English language offer that will be targeted at Muslim women but available to other groups; and we are trialling new and innovative ways for Jobcentre Plus to engage with and tailor their services to BME communities. I hate to think that all the good work we are doing to build trust and faith in communities would ever be undermined.

I do not like this word “tolerate.” In this country, we do not tolerate people; we respect and embrace all cultures. Despite that, we know that Islamophobia is not only widespread but rampant. As a solicitor, for the best part of a decade I advised employees and employers on employment law. My worry is that those who read the reports on the CJEU decision will see it as a green light to engage in further discrimination in the workplace. What specifically will the Government do to ensure that employers do not take from the judgments the idea that they can carry on discriminating, particularly against Muslim women, who are more likely to be discriminated against in the workplace than many other groups?

As I have already made clear, we are working closely with the Equality and Human Rights Commission to update guidance for employers on dealing with religion or belief in the workplace. Nevertheless, we will continue to revise the guidance so that it takes account of the judgment. We want to be absolutely clear to all concerned that the Equality Act remains unchanged, as do the rights of women and religious employees, which we will continue to protect.

I am sure I am not alone in seeing a big difference between a headscarf, crucifix or turban, and the burqa or niqab. How will the judgment affect the two police forces of which I am aware that currently state they are willing to consider applications from female police officers who might want to wear a full niqab or burqa?

The Government wholeheartedly support the invaluable work being done by people throughout the country who are inspired by that faith. If it is safe for them to continue to wear their religious garments while doing their job, we very much feel they should be encouraged to do so.

This ruling sends an appalling message to faith communities in our countries, and many visibly religious people at work today will feel more scrutinised and more insecure as a result. The ruling also creates a lower threshold for religious freedom than we enjoy under UK legislation. Many thousands of people in my constituency are affected; they need a clear and continuing signal from the Government that they will support our national legal settlement. I am grateful for what the Minister has already said on that, but how will she and the Government monitor the ruling’s impact on employees currently in the workplace? What steps will she take to prevent any further marginalisation of visibly religious people in the workplace?

The hon. Lady is absolutely right to raise that issue. The Government believe that people need to be able to feel strong in their religious identities. We have to continue to ensure that the voices of people of faith are heard in Government. We should recognise that people are completely free to follow their faith. We want a society that treats people equally and with respect, so we will always keep this matter under review and take the necessary action if and when it becomes apparent that we need to.

This is a complicated issue, but my constituents in Kettering would view it as yet another inappropriate judgment from a European court, telling us what to do when we have not sought its advice in the first place. Will the Minister clarify what power the ECJ will have over this country once we have left the European Union?

We know we are leaving the European Union. We are committed to a successful withdrawal and to forming a new relationship with Europe, and at that stage the court will have no power. We will preserve all the rights that employees currently enjoy and ensure that the robust protections that European legislation affords them are enshrined in domestic law.

The Minister talks about neutral dress codes applying to both genders, but does she accept that even if a no-headscarves rule applies to both genders it effectively discriminates against only women, and that a no-turbans rule effectively discriminates against only men? Is not something more robust required?

It is absolutely clear that a no-headscarves rule or a no-turbans rule would be illegal, as it would constitute direct discrimination. The only form of discrimination that is allowed is a blanket ban on any form of religious clothing or symbols, under the legislation referred to in yesterday’s court case.

Many of my constituents feel that the ban clearly targets Muslim women who wish to wear the hijab. Given the improving but still below-average employment rate among Muslim women, does the Minister not feel that the ruling sends out completely the wrong message as we try to build a country that works for everyone?

It does send out an unhelpful message, particularly as this Government take really seriously discrimination in any form. We will renew our efforts to ensure that no one is held back by any outdated attitudes or practices.

A person’s ability to do 99.9% of jobs, including that of security guard, is not affected by whether they wear a skull cap, headscarf, turban, cross, mangalsutra or tilaka. Can this ECJ judgment be rejected in domestic law to prevent confusion among employers about its having any bearing on this country? As G4S receives public funding and is discriminating against people, can its contract be reviewed?

Domestic equality legislation is very clear. Employers do not need to change any legitimate policies on dress code in the workplace, but it is vital that employers and employees understand what the law allows them to do, and that is what this is about. We do not want any employers mistakenly thinking that this ruling gives them any authority to sack public-facing staff who wear headscarves or any other religious symbols. Those protections are already clear in domestic law, and we will always make sure that they are most strongly enforced.

At a time when many Members of this House—both across parties and in the Government—are working to promote the principles of freedom of religion or belief internationally, does my hon. Friend agree that it is vital that we work hard to protect long-standing religious freedoms here at home?

Yes, my hon. Friend is absolutely right. We have one of the strongest legislative frameworks in the world to protect communities from hostility, violence and bigotry. We continue to promote that on the world stage, as it is fundamental to everything this country stands for—tolerance and the embracing of other cultures as we make them part of our national identity.

This is a worrying judgment for all people of faith. Has the Minister seen that the Church of England this morning described the judgment as “troubling”? Will she confirm that she understands why the Church of England has taken that view, and that it is right to do so?

The right hon. Gentleman is right to bring that up, because the judgment applies to religious symbols, whatever the faith of the individual who happens to be wearing them. The ruling will be equally troubling for the Church of England, for people of Muslim faith, for people of whatever faith and indeed for people of none.

Sophia Dar, a Muslim woman in my constituency, was attacked in broad daylight on Oxford Street, one of the busiest shopping streets in the world, let alone London, by a man who forcibly tried to remove her hijab from her head. Do not these judgments reinforce a sense that other people have the right to tell people of faith what they can and cannot wear and how they choose to practise or not practise their faith? In addition to the very welcome guidelines to which the Minister has committed today, will she look at what we can do to enforce existing laws that protect people from religious discrimination so that the attacker of my constituent is brought to very heavy justice?

I am very sorry to hear about the hon. Gentleman’s constituent. That sounds like a very distressing thing to happen. Those who perpetrate hate crimes of any kind will be punished with the full force of the law. We are committed to tackling hate crime and have produced a new hate crime action plan that focuses on reducing hate crime, increasing reporting and increasing support for victims.

We have all heard about hijabs being ripped from girls’ heads by people emboldened by the referendum result—admittedly, that was an unintended consequence of the result. I am encouraged by the Minister’s words. Will she do all she can to ensure that this illiberal judgment, which has nothing to do with workplace performance, does not have its own unwelcome by-product? Apparently, Muslim women are 70% more likely to be unemployed than non-Muslim women. The judgment could be a recruiting sergeant for Islamic extremist groups. Will she have a word with colleagues about proposed cuts to provision for English for Speakers of other languages.

The hon. Lady is right: hate crime, whatever form it takes, should never be tolerated. It should be punished with the full force of the law, and the Government take that very seriously.

I am heartened to hear the Minister’s comments and her very clear guidelines, but I am still concerned that this ruling may allow intolerant employers to ban symbols such as the hijab or even a cross on the forehead. How are the Government planning to monitor employers, and how will they make it possible for employees to report problems without fear of repercussions?

That is an important question. We are very clear that employers do not need to change legitimate policies on dress codes in the workplace, but it is vital that employers and employees understand what the law allows. Employers cannot act unscrupulously in some mistaken interpretation of the law, and employees must not feel that they cannot report any incidents of this kind.

When I was married, as part of the service my husband gave me a ring. We all know that that is culturally loaded. Wedding rings are allowed, but headscarves on young Muslim women are a problem. I ask the Minister for the fifth time—unlike the hon. Member for Stafford (Jeremy Lefroy)—what she will do about G4S.

Ironically, my husband did the same—I have a ring, too. The hon. Lady makes a valid point, and it is one that we keep under consideration. This is not a domestic issue and it has not happened with G4S in the UK, but we take it very seriously and will keep it in mind when making any decisions.

I welcome the tone of the exchanges in the House and I know that they will be very well received by the many Muslim and Sikh constituents whom I have the honour to represent. I also welcome what the Minister said about new guidance to be produced by the Equality and Human Rights Commission. May I ask her to ensure that the EHRC has the resources necessary to carry out its enforcement function, about which, as she knows, there are significant concerns?

Let me be clear: this is existing EHRC guidance, but we will work with the commission to make sure that in the light of the most recent judgment it is updated and entirely fit for purpose. I am confident that the EHRC has sufficient funds to do its job efficiently. The hon. Lady might be interested to know that even after some recent changes in its workforce, the commission still has four times more staff than we have in the Government Equalities Office.

I am the chair of the all-party parliamentary group for British Sikhs. I thank you, Mr Speaker, for again this year hosting the Vaisakhi celebration, on 18 April in Speaker’s Rooms. I welcome the Minister’s statement today, but will Her Majesty’s Government make representations to the Governments of France and Belgium, which overtly have state-sponsored discrimination against Sikhs, including British Sikhs who move to France or Belgium?

That is a matter for my colleagues in the Foreign and Commonwealth Office, but we will have that conversation with them. We take discrimination seriously and will continue to ensure that no one is held back by any outdated attitude or practice.

We tend to come to points of order after statements. We can hear from the hon. Lady at that point.

The spirit of generosity gets the better of me. If the hon. Lady is extremely brief, we will hear her point of order.

I am enormously grateful to you, Mr Speaker. This is a very important point. The great repeal Bill will incorporate all existing EU law at the moment of Brexit. It will therefore incorporate the two judgments of the European Court of Justice that we have just discussed. Will you seek confirmation from the Prime Minister and her Government, if possible, that the two judgments will not be allowed to remain part of our domestic law one moment past Brexit?

I am extremely grateful to the hon. Lady, but I fear she invests me with a power that I do not possess. It is not for me to ask the Government to take a position one way or the other. All I would say is that I have no reason to dissent from her interpretation of the legal and, in a sense, parliamentary position. However, the whole point of that upcoming Bill to be introduced by the Government is that it imports from Europe into our law a body of material with the option then to preserve, to amend or to repeal, case by case, as the Government propose and ultimately the House decides. On the basis of the hon. Lady’s expression of interest in this important matter, I feel certain that, when any such matter comes up for consideration, she will leap from her seat to acquaint the House with her views, and we all look forward to that.