Employees may be dismissed with no religious discrimination if they breach a uniform policy that bans headscarves (and other religious symbols), says the European Court of Justice (ECJ). This is the court to which employees and employers can currently appeal tribunal decisions after exhausting the UK courts.
This was a ruling in the conjoined cases of a Belgian receptionist who was dismissed by G4 for breaching the union-agreed dress code after she started wearing a headscarf, and of a French IT consultant who was told to remove her scarf after a client complained, and then dismissed when she refused.
These religious discrimination cases have taken eight years to work their way to the top of the legal system.
In France and Belgium, more than the UK, there is a strong public feeling that religious displays are not a cultural and historical fit.
Until now, we have advised employer clients that a ‘one size fits all’ policy (like a dress code that bans religious displays or head coverings) is likely to be indirect religious discrimination unless there is a very good reason for it. And that there is unlikely to be a good reason.
Indirect religious discrimination means it affects certain groups (eg Muslims, Jews, Sikkhs) more than others. Good reason means that no less discriminatory way exists to achieve what you reasonably want to achieve. We have advised that a teacher may validly be told not to cover her face, because that can impair the sight of lips and sound of the voice which are crucial for teaching. But we wouldn’t have advised it in the case of a secretary or IT worker.
Understanding the decision
This case shows that the devil is in the detail. It was a question about what constitutes the employer’s exception – the ‘good reason’ mentioned above. It is now considered a ‘good reason’ if the employer wants to “project an image of neutrality, notably where the employee is client-facing”.
There is currently (the full judgment is not yet available) no word on what “neutrality” means. Our view is that the court may be referring to religious neutrality. There is no word yet on why it might be reasonable to want to achieve this, as opposed to, say, having a policy that all people of all religions and none are to be treated the same, regardless of what they choose to wear.
To avoid confusion, employees can still be religious and pray in their own time, but can be asked to keep it hidden from clients. We don’t know if they can be asked to keep it hidden from colleagues. The employer must first have a religion-neutral policy and consider whether it is necessary for the employee to deal with clients.
The European Forum of Muslim Women said they “strongly condemn and deplore the decision”, saying “The backing of this headscarf ban by the highest court of justice in Europe is a serious threat to the principles of equality, justice, and freedoms that EU must uphold.”
Their religious discrimination cases now go back to the national courts to rule on the cases having taken further evidence on questions identified by the ECJ, such as whether the employees could have been made non-client-facing.
The rulings of the ECJ are currently binding on the UK. They won’t be from 2009 because of Brexit. We think it likely that the UK courts and tribunals will continue to apply the ECJ’s rulings, albeit maybe on a haphazard basis, so that the future of employment law will become even harder to predict.
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As the UK gets ready to leave the EU, some companies are preparing to leave the UK. Companies such as John Lewis and Ryanair have already said that they have made a loss since the plummet of sterling against the dollar. They fear that the worse is yet to come.
On the other hand, a pro-Brexit campaign group claims that leaving the EU could create 400,000 jobs. Some economists argue that this takes no account of the risks to exports.
The pound dropped to a record low against the dollar and Britain has borrowed over £12bn due to its fear of Brexit’s impact on public finances (£1bn more than experts predicted). Britain faces 2017 without a formal statement on the Government’s negotiating position and aspirations (perhaps understandably).
Government cuts have been all too familiar in recent years and it doesn’t appear that leaving the EU is going to benefit economic stability or the employment figures. Thousands of jobs could be jeopardy if many European companies based within the UK leave the country. Many companies fear the prospect of new taxes when trading with Europe if negotiations with the European council do not work in favour of Britain.
If Brexit proves economically costly, we will be faced with the question of whether spending will decrease or new taxes will be introduced in order to compensate.
Since the European Communities Act 1972 was passed the UK has benefitted from various aspects of being part of the EU which we now risk losing. Importing and exporting without tariffs is a huge economical benefit as it allows us to trade efficiently. Companies are hoping that Theresa May will be able to negotiate a retention of the trading advantages, though it is unclear whether she can offer anything that the EU values.
The High Court recently ruled that the Government cannot exit the EU without the support of the House of Commons (a decision which is being appealed to the Supreme Court). It remains to be seen whether this decision will withstand appeal and if it does, whether MPs will make their support conditional on the government succeeding in extracting any particular concessions from the EU.
By Ayesha Belaid
Part of our Brexit series.Read More
Hundreds of lawyers are arguing about Brexit at a consitutional and government level. Businesses are uncertain about Brexit, leaving many areas of our society anxious about the future.
Many countries, including Japan, the United States and Canada have voiced their worries over the past few months of the potential impact that a poorly-handled Brexit could have on their ability to run their businesses from the UK.
Some companies are showing concern, not only with the impending departure from the EU itself, but also with the lack of clear information being published by the government about its position in negotiating the future after triggering Article 50 of the Lisbon Treaty.
Lincolnshire employer, Smiffy’s, has already voiced their concern over the time taken to break ground with Brexit. They say they have experienced a loss of sales, and only expect this to increase as time goes on and a lack of direction remains. As a result of this, they have made plans to move their headquarters to the Netherlands echoing the fears of other companies earlier in the year such as banking giant JP Morgan and Vodafone.
One fear is the lack of access to the single market. Many see this as a step backwards. Another is the impact of a restriction on EU migration, with many employers saying that this could reduce the level of skill and expertise available in the job market.
However, there is a flipside to the argument. Whilst some businesses are expressing concern, others (albeit smaller businesses) have said they could potentially benefit from the lack of bureaucratic restraint on trade and business which some see as inherent within the EU.
Theresa May is steadfast in her plan to enact Article 50 by the end of March 2017. There had been fears that this could be postponed but she has secured this timetable in a vote in the House of Commons.
It wasn’t long before lawyers became involved; a High Court ruling at the beginning of November ruled that the government cannot trigger Article 50 without support from the House of Commons. This is being appealed to the Supreme Court and the outcome of that appeal is not known.
This had an enormous impact; the value of the pound rocketed to a four-week high. If the ruling of the Supreme Court in January 2017 upholds this decision, we think that it is likely that the desire of businesses to escape the UK to avoid the impact of a “hard” Brexit will be lessened. Hard Brexit is leaving without obtaining a prior agreement on EU tariffs, meaning we fall back on less favourable ETO rules.
Will Theresa May manage to negotiate a “soft” Brexit , protecting jobs abroad and securing trade with our old partners? Or, will the advocates of a “hard” or “clean” Brexit emerge victorious, effectively ending our relationship with Europe in favour of, what they argue to be, more lucrative opportunities with the rest of the world and an end to the restraint placed on the UK by excessive bureaucracy? At this point, it is still uncertain, and this lack of certainty is beginning to show itself now in decisions that will undoubtedly affect our society as a whole, and importantly, our businesses.
by Connor Singleton
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The Brexit referendum left people with disabilities fearing that their opportunities in the workplace could come under threat. This is because many protections come from the EU, including disability discrimination. But there is still a large gap between the employment rate of the working age population as a whole and the employment rate for disabled people, which is less than 50%.
Being a part of the EU has made it easier for businesses to hire overseas workers than hire someone with learning disabilities because it can be more expensive to train those with mental disabilities and provide equipment to those with physical disabilities. Now that Britain has decided to leave the EU there will be more opportunities for British disabled people, who could be hired to plug in the skills gap left by EU workers.
In the UK there are many existing schemes to help those with disabilities get back into work such as Access to Work, Foxes Academy and the Government’s Disability Confident scheme. However, substantial cuts have been made to them. Employers generally want to hire those who are ‘ready-made’ as they require less investment. Lastly, not all businesses have the tools or knowledge to hire people with disabilities.
Brexit will be with us by 2019. Over the next few years, we could see employers increasing their efforts to hire those with disabilities and use them to plug the skills gap that will inadvertently come about due to the triggering of Article 50. could also understand the law that surrounds disability discrimination. That involves changing the way in which employment is structured, the removal of physical barriers and/or providing extra support for a disabled worker.
Employers should, more than ever, understand the law that surrounds disability discrimination. That involves changing the way in which employment is structured, the removal of physical barriers and/or providing extra support for disabled workers.
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In a move that employment lawyers are watching carefully, Theresa May has announced that we will start the Brexit process in early 2017, it has been reported.
She means that she will trigger article 50 of the Lisbon Treaty by 1 April next year. This article reads (we paraphrase):
- Any Member State may decide to leave the EU
- It does this by telling the European Council. The Council shall then negotiate the arrangements for withdrawal after obtaining the consent of the European Parliament.
- The State is no longer bound European treaties when the arrangements are agreed, or two years after they start, whichever comes first (unless both parties agree to extend the negotiation period).
- The State’s representative on the Council (Boris Johnson) can’t participate in the Council side of these negotiations.
- If the State changes its mind and wants to rejoin, it has to re-apply from scratch as a brand new member state.
At some point in that process, the UK will repeal the 1972 European Communities Act with effect from the leaving date. We will be free from the EU by Spring 2019, before the next General Election.
Nobody knows what will happen to the laws that were made in Europe and that the Government will no longer be forced to follow. It is fair to say that Whitehall civil servants, employment lawyers and large employers are jittery.
Prime Minister Theresa May told the BBC today that her announcement was aimed at giving greater clarity about the timetable, to give stability to workers and businesses.
The Government has let it be known that Brexit Secretary David Davis will shortly say that when we leave, employment rights will not be eroded.
“We still do want to have a good relationship with Europe and the European Union” said May, but reports are that we are not well-liked by our EU counterparts and that with the UK gone, they will find it easier to pass legislation, much of which is left-wing and pro-worker.
Employment lawyers, including this firm report that their exporting clients are putting up prices by 8%-10% to take into account the effects of the currency shift. Because of that, and the inevitable import tariffs to sell to the EU, we expect that to have an effect on both their sales and their employment figures.
She recently said “Existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am Prime Minister. We’re going see workers’ rights not eroded, and not just protected, but enhanced under this government.”
(Image courtesy of Policy Exchange, licenced under CC)
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Currently employers can recruit staff from the EU countries (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech, Denmark, Estonia, Finland,
France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden) with no problems. EU nationals still have the right of free movement to live and work in the UK. So do those from the European Economic Area (Iceland, Liechtenstein, Norway) and Switzerland.
However, nobody knows (see our other article for some shameless speculation) what will happen to this area of employment law after Brexit – this is part of the exit negotiations. Commentators think it is likely that Britain will have to continue to accept foreign workers in return for not paying import duties on goods sold to the EU. No doubt there will be tweaks, but these are up in the air for now. Farmers who rely on Poles and Lithuanians wait anxiously. We have employer clients who rely on Eastern European programming labour, for example.
There is certainly a risk that that EU workers will not be able to come here to work once Brexit is finalised. There is even a risk that that existing workers will have to return home. Anecdotally we have heard of EU staff returning now because they feel unwelcome after the vote.
Remember that some EU nationals may also have dual nationality or a right to remain because they will have lived here for long enough already by ‘B-day’.
The negotiation process is likely to take the full two years allowed by EU law. This is basically a negotiation not about the exit but about the relationship after the exit.
What not to do
Some employers will want to avoid employing EU nationals now, at least in longer-term roles (that is non-seasonal ones). Otherwise they may have to deal with disruption in 2019 when employment law in this area will change.
The problem with this approach is the risk of discrimination claims. Employment law permits an employer to refuse to hire an individual who doesn’t have the right to work in the UK. However, refusing to hire a person because he or she might not have a right to work in the UK at some point in the future is a very different prospect.
Next steps for employees
Some employees may be able to obtain a right to remain in the UK now. Those who have five years of residence or a year of permanent residence might future-proof their ability to work here by applying to change their status.
Next steps for employers
If employers wish to future-proof their businesses, they should not simply refuse to recruit EU nationals yet. This would be unlawful as direct discrimination on grounds of nationality.
If the role is really part of a long-term project (that is, longer than two years), an employer could adopt a policy of not hiring anyone without indefinite right to remain and work in the UK. This would need to be genuine and justifiable; this involves weighing up the possible disruption of losing them, the longevity of other staff in the role.
This uses the law on so-called ‘indirect discrimination’. The legal test is whether the policy is a ‘proportionate means’ of achieving a ‘legitimate aim’. This means is it no harsher than absolutely necessary when you’ve weighed up the interests of the employee and employer. It’s a fairly tough test generally and there’s no caselaw on it in a Brexit context yet. However, it will often be worth an employer chancing it when it considers the likely risk of a claim and amount of compensation. It would be much safer to wait for the negotiations to progress, because once the new rules are in place there is less speculation on the ‘interests of the employer’ side of the equation.
Do contracts need to be amended?
No. There is no need to amend any employment contracts. If staff are not permitted to remain/work in the UK after Brexit, they can be dismissed fairly and without race discrimination under employment law, whatever an out-of-date contract says.
We will of course keep you updated.
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In this article Birmingham employment solicitors Hatton James Legal get to grips with the possible effect on UK employment law of leaving the Eurozone.
Being part of Europe has meant that we have had to accept laws made by “unelected Eurocrats” as a condition of membership. Usually those are employee-friendly laws, that future right-leaning governments may choose to do away with. Our EU membership may come to an end next month and so which are the laws that originally came from the EU and how might they fare afterwards?
We do our best to make predictions, in the absence of any helpful promises or threats by politicians(!).
- Unfair dismissal
This is a UK-derived right and therefore will be unaffected by the referendum.
But we may see discrimination claims brought within the ability of employers to manage out employees with “protected discussions”. At present, employers have to be careful when offering a paid departure to an employee who has a potential discrimination claim, since that can remove the protection of the employer from having that discussion referred to in an employment tribunal.
- Rights to sue for unlawful deductions
Again, this will be unaffected as these laws are nothing to do with the EU.
- Working time
The EU mandates that we have four weeks’ holiday paid each year. Britain’s Labour government increased that voluntarily to 5.6 weeks (28 days including bank holidays) in 1998. A future Conservative government might reduce holiday entitlement significantly. Or may decide to make holiday pay based only on basic pay, not bonuses and overtime. The ability for a sick employee to carry over holiday to a new holiday year is particularly at risk.
The 48 hour working week is from the EU law, but it was never very strong, because of opt-outs so it may not be tinkered with at all.
We don’t believe that the right to a daily rest period and night work limits will be changed, because of the health and safety implications – it would be politically difficult.
- Family-friendly rights
These have been mainly driven by the EU. Those that are a staple part of British life are unlikely to be tweaked much. In fact, some initiatives are domestic, such as shared parental leave, a Conservative invention. But some of the fringe rights such as the right to take time off for dependants may be at risk – we are in the dark about this.
- Discrimination laws
Again, these have been mainly EU-driven. Our feeling is that rights not to be discriminated on for reasons of sex, age, race, disability, sexuality etc are not going to be withdrawn but governments may not be able to resist watering down some provisions around the edges, especially in areas where EU caselaw from cases originating in Portugal, Poland etc has inched the protections in favour of employees.
We think that age discrimination in particular, the newest discrimination, may suffer, bringing back the right for companies to retire off staff over the state pension age.
In particular we may see Conservative governments tweaking the balance by removing those areas where currently the employee is given the benefit of the doubt (the “burden of proof provisions”).
Equal pay awards may become a thing of the past; they have been a large burden on some councils, especially in Birmingham of course.
It is entirely possible that uncapped discrimination awards may be a casualty of an “out” vote; perhaps the unfair dismissal cap of one year’s pay will apply to all employment claims.
And we wonder whether part-timers, agency workers and other non-traditional employees would continue to have protections, since Conservative governments tend to be in favour of flexible working practices.
We don’t know to what extent future Governments might change rights under Tupe to transfer to a new employer if a business is bought out, but suspect that they may be watered down to facilitate a more flexible business economy.
Commentators predict for example that the collective redundancy provisions, that let unions intervene and that protect workers in large companies (20 or more staff), may be done away with so that they have no right to 90 days’ notice of redundancies, just like staff at smaller companies.
We remember that a Labour Government extended Tupe to ‘service provision changes’ (that is extending Tupe rights to contracting out situations and changing service providers), but then the subsequent Conservative government didn’t reverse that extension.
- Data protection
These are EU laws and again we predict that they may be watered down, though we doubt it, given that hacking and data loss by public bodies is a hot topic for the media at the moment.
Life would become a bit simpler for employment lawyers and HR staff simply because of the reduced need for keeping up with new legislation every time the EU institutions bring in new laws (which they do about twice a year) and when the European Court of Justice makes a ruling which tweaks employment rights one way or another.
- Immigration and recruitment from overseas
EU nationals may lose the automatic right to work in the UK. We think that there would be changes to the work permit system affecting the recruitment pool.
We simply don’t know what the future landscape may look like.
There may be opposition to many of these ideas in Parliament, preventing large tweaks. And our EU counterparts may effectively keep a UK government in check by refusing to do business with us or imposing tariffs if we implement certain changes, because they could perceive us as becoming unfairly economically flexible and undermining their social goals.
Therefore it may be that a Brexit would not herald any real change for employers, staff and lawyers at all. One thing is certain – the world did not change on 24 June.
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