Untying a knotty problem

07 Oct 2016

The European Court of Human Rights has taken a surprisingly conservative line in the two major decisions it’s handed down on the subject of clothing and religious discrimination (I exclude Eweida as that wasn’t about clothing!).  Now the CJEU is grappling with the  issue and is challenged to come up with judgement of Solomon in a couple of cases which will be decided very soon.

The case of Ms Achbita comes from Belgium and the case of Ms Bourgnaoui comes from France. Both ladies are Muslim. One of them wore a  headscarf to work in defiance of her employers instruction. The other said she’d do so. Both were dismissed and took claims of discrimination on the grounds of religion or belief through their national courts. Both cases were referred to the CJEU for guidance and in accordance with the Court’s practice both cases were examined by its Advocates-General whose role is to prepare and  publish advice to the Court. More often than not the Court follows the AG’s guidance but it’s really challenged in these two cases because they were referred to different AG’s who seem to have given contradictory guidance.

In Achbita, the German AG (Professor Dr. Juliane Kokott)  opines that the employer’s actions were not direct discrimination and even  if they were, there was a genuine occupational requirement (set out clearly in the employer’s dress code). She went on to argue there couldn’t be indirect discrimination because  the employer had a legitimate commercial objective of maintaining strict religious neutrality. The AG also makes the point that not every interference with a freedom guaranteed by the Human Rights Convention must necessarily be discriminatory.

In Bourgnaoui the British AG (Eleanor Sharpstone QC) argues a distinction between manifesting and proselytising one’s belief. She says employers have a legitimate concern to prohibit the latter in the workplace but simply wearing “religious apparel” is not proselytising, so the employer crossed a line and  interfered with an employee’s personal rights on the basis of a particular characteristic. The AG resists any suggestion that merely wearing a hijab could be seen as improper behaviour towards a customer and says that if one views the headscarf as  an expression of religious freedom it can become a contribution to the pluralism inherent in democratic society.

While I know where my sympathies and instincts lie I have no idea how the Court will decide the matter. I expect  it’s judgement within the next month or so.