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EU Court of Justice Ruling: Religious Signs

Volume 779: debated on Wednesday 15 March 2017


My Lords, with the leave of the House, I will repeat in the form of a Statement a response made by my honourable friend Caroline Dinenage, Parliamentary Under-Secretary of State for Women, Equalities and Early Years, to an Urgent Question in another place on yesterday’s ruling by the Court of Justice of the European Union. The Statement is as follows:

“Mr Speaker, I thank my right honourable friend for raising this very important issue today 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 made yesterday. This Government are completely opposed to discrimination, including on the grounds of gender or religion, or both. It is the right of all women to choose how they dress and we do not believe these judgments change that. Exactly the same legal protections apply today as did before the rulings.

In both the Achbita and Bougnaoui cases, the judgments were 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, their race, their 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 under EU and domestic law that an employer’s dress code, which applies to and is applied in the same way to all employees, may be justifiable if the employer can show some 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 it is the case in these judgments, which will now revert to their own domestic courts.

I am aware of some concern that these judgments potentially conflict with those of the European Court of Human Rights, particularly in the case of Nadia Eweida, the British Airways stewardess who was banned from wearing a small crucifix but whose case the ECHR upheld. We do not believe that the different judgments are in conflict. What both the CJEU and the ECHR were trying to do was 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 in the Achbita case yesterday, it favoured the employer. We will still take action to ensure that the current legal position is set out. We will work with the Equality and Human Rights Commission to update guidance for employers for dealing with religion or belief in the workplace. It will be revised so that it takes account of the CJEU judgments as well. We will be making absolutely clear to all concerned that the Equality Act, and the rights of women and religious employees, remain unchanged.

Like any judgments 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 and never sanctioned, we will of course keep this issue under very close review going forward”.

My Lords, I thank the Minister for her Statement. The court ruling, however, raises some real concerns about religious freedom in the workplace, including those of Muslim women who choose to wear the hijab. Although I think the Minister has been quite clear in her Statement, will she say positively that people can express their faith at the workplace, and in a professional manner, as they choose? Can she confirm that the Government believe that preventing women wearing the hijab, as exampled in this case, is simply and unconditionally wrong?

What advice and guidance will the Government give to employers on the court ruling, and will it reinforce the rights of employees in the UK to express their religious freedoms? Finally, will the Minister say what direct communication the Government have had with G4S, the employer in this case? G4S holds a number of government contracts. I hope that she can reinforce with G4S its employees’ rights to wear clothing necessary for their religious practices.

As I said in my Statement, and will restate now, we will work with the ECHR to update guidance for employers for dealing with religion or belief in the workplace. As I also said before, and am happy to repeat, indirect discrimination can be lawful or unlawful. It is unlawful where it is neither legitimate nor proportionate. When an employer seeks to justify why it has banned religious symbols or certain items of clothing, it has to point out the legitimacy and proportionality of why it has done so. If that makes it far more difficult for one group of people to be employed, the discriminatory effect of their actions can be called into question.

I, too, thank the Minister for this extensive explanation. We on these Benches and, I am sure, Members of the whole House believe strongly that freedom of religious dress is important in an open and democratic society. I am not the world’s best at interpreting legal judgments, I am afraid, but as I understand it, national Governments through their courts have the ability to interpret the judgment in line with existing cultural beliefs and practices. Is that the Minister’s understanding? Can she therefore confirm that all existing freedoms of religious dress in this country will be protected?

I shall deal with the latter point precisely: yes, we will protect and uphold the freedoms that have been allowed in this country, as we always have done. It will not affect our domestic law. The noble Baroness is also right that when a judgment such as this is made, it is then referred to the national courts—in this case, the courts of France and Belgium—and it is up to them to interpret within their laws what the judgment means. As far as this country is concerned, nothing changes.

My Lords, I thank the Government for the clarity and forcefulness of the Statement protecting religious minorities. The law in Europe seems to be in a mess because of the two conflicting judgments. They are conflicting because if the Human Rights Council says that people have the right to manifest their religion, that should be absolute. Otherwise, it becomes very difficult. Who decides? In France and Belgium, the Governments overrule that judgment. Sikh schoolchildren cannot go to a public school with a turban and people who want a passport photo have to take their turban off. This is just absurd. I do not know whether there is anything the Government can do to explain that absurdity to those in Europe.

We do not consider that the two are inconsistent in terms of the European Court of Human Rights judgment. Sorry—I have got the wrong end of the stick. The noble Lord is correct in one sense that the CJEU judgment could conflict with the laws of the states—that is, France and Belgium. It not seeking to make the law for those countries. It is sending the case back to them for domestic consideration. In that sense, I do not see inconsistency, but I know exactly what the noble Lord is driving at.

My Lords, given that there have been some very obvious differences between the UK and some continental countries in this area, does the Minister agree that the general approach in the UK of welcoming religious and cultural diversity must mean that welcoming its reasonable manifestation within the overall rhythms of British culture has stood us well in the past and will do so in the future, notwithstanding this court judgment?

I could not agree more with the right reverend Prelate. This is a great country to live in no matter your religion or belief. Long may we go about freely expressing our religion and living our lives in the way that we see fit. The right reverend Prelate spoke about different laws in different countries. Obviously last year there was a ruling in France over the burkini, which was subsequently rejected.

My Lords, I welcome the Minister’s very strong Statement and the very strong statements in support of freedom of religion and belief by the Prime Minister. The Minister may be aware of a YouGov poll that was done immediately after this ruling which showed that 42% of Brits would support such a ban in the workplace, or at least employers having the ability to impose such a ban in the workplace. Will my noble friend take back to her colleagues the possibility of further work under the integration strategy to ensure that these kinds of opinion held in the country are pushed back by views within government?

My noble friend makes an encouraging point—that 58% of people would not want such a ban imposed. In my previous job, integration was a strong part of what we did, particularly for communities new to this country or to localities within it. We cannot let that integration work go. I commend all those involved in such work and, since the Church of England is so well represented here today, the work that it has done in particular. Yesterday I talked to the right reverend Prelate the Bishop of Durham about the community sponsorship scheme—although we were supposed to be talking about something entirely different—as well as the Church’s work in its Near Neighbours programme.

My Lords, having reflected on this discussion, I welcome the Government’s stance and the points made by the noble Baroness, Lady Warsi. I was thinking whether under such a ban I would get away with saying that what I am wearing today was my blonde version, notwithstanding that red is my favourite colour. How does the Minister plan to communicate with employers to make them aware of the provision under the Equality Act 2010 that specifically protects religious freedom and to ensure that this is not infringed?

The noble Baroness is right. As I pointed out in my Statement and in responding to the noble Baroness, Lady Burt, we shall be working with the ECHR on updating our guidance for employers on dealing with religion or belief in the workplace. I see no reason why our country’s stance should change in the light of this judgment.

My Lords, these are complicated matters, but does the Minister agree that they are not made any easier by judgments from the European courts? Surely our Parliament and our courts are perfectly capable of deciding these things. As it is, we have the European Court of Justice or CJEU, of which we shall no longer be part in two years’ time, and we have the ECHR, which, frankly, ought to be granting us a margin of appreciation so that we can have clarity for employers and clarity for employees.

My noble friend makes a good point, because from the discussions in this House this afternoon we can see the confusion in which such judgments result and some of the fears that they create. In a short time—a matter of a couple of years—we shall have control of our own courts.