Abstract

Excerpted From: Erica Howard, LF v SCRL and the CJEU [Court of Justice of the European Union]'s Failure to Engage with the Reality of Muslim Women in the Labour Market, 52 Industrial Law Journal 997 (December 2023) (74 Footnotes) (Full Document Free Copy Not Available - Check with Library)

In its judgment of 13 October 2022, LF v SCRL, the Court of Justice of the European Union (CJEU) was once again asked to decide whether workplace rules prohibiting the wearing of Islamic headscarves amounted to discrimination. This was not the first time the CJEU [Court of Justice of the European Union] addressed this question: the Grand Chamber handed down judgment in four previous cases: Achbita and Bougnaoui in 2017 and Wabe and Muller in 2021. In LF v SCRL, and in the previous cases, the women concerned wore a headscarf which covered their hair but left their face free and none of these cases addressed the wearing of face-covering veils. In the earlier judgments, the CJEU [Court of Justice of the European Union] held that workplace neutrality rules prohibiting the wearing of any signs of religious, philosophical, or political beliefs most likely constitute indirect discrimination. It also held that these rules are justified if they pursue a legitimate aim [which could be found in the freedom to conduct a business as laid down in Article 16 of the Charter of Fundamental Rights of the European Union ('the Charter’)], and if the means to achieve the legitimate aim are appropriate and necessary. According to the CJEU [Court of Justice of the European Union], the neutrality rules would be appropriate and necessary as long as, first, they banned all visible signs and not just some signs of religious, philosophical, and political beliefs. Second, the neutrality rule must be genuinely pursued in a consistent and systematic manner and must, thus, apply to all employees equally and it should not make a distinction between different religions or beliefs. Third, the neutrality rule must be limited to customer-facing employees. And, fourth, the employer must have considered whether the employee could be moved to a job in which they would not come into contact with customers. In Wabe and Müller (2021), the CJEU [Court of Justice of the European Union] added to these factors a requirement for the employer to prove that there was a genuine need for the neutrality policy, which included showing that the business would suffer real harm without such a policy. The CJEU [Court of Justice of the European Union] also held that the employer had to balance their genuine need for the policy with the fundamental right of the employee to manifest their religion.

These four earlier judgments were criticised in the literature for a number of interlinked reasons. First, the CJEU [Court of Justice of the European Union] decided, in Bougnaoui, that the wish of a customer not to be served by someone wearing a headscarf was not a genuine and determining occupational requirement. It was suggested in the literature that there is a tension between this and the acceptance, in Achbita, that neutrality can be a legitimate aim. Why would an employer have a neutrality rule if it was not for the wishes or anticipated wishes of customers? Even if an employer argues that their neutrality rules are based on an ethos of neutrality, it can be questioned whether this is because they want to present a neutral image to their customers and how much this is influenced by their customers' wishes. Moreover, Achbita and Bougnaoui were cases concerning, respectively, Belgium and France, two countries 'where the legal and factual toleration of religious symbols in the public sphere is notoriously limited’, and, 'both States are rather reluctant to accommodate claims of religious minorities, especially those of their--quite sizeable-- Muslim community’. Therefore, it appears likely that the neutrality rules in these cases were based on customer wishes. However, the CJEU [Court of Justice of the European Union] did not engage with the reasons behind the neutrality rules and held that 'the freedom to conduct a business enshrined in Article 16 of the Charter entails the liberty to project a corporate image of neutrality’.

Second, it was questioned whether the wearing of religious symbols by employees would really make customers think that this reflects the official position of the company. Davies, for example, asks whether neutrality 'is the desire of the company to make its customers believe that it, the company, has no views on political or religious questions', and continues that it is 'hard to believe that anyone thinks that the beliefs of an employee, as expressed in their headscarf or beard or badge, reflect the official position of the company’. Third, the CJEU [Court of Justice of the European Union] was criticised for accepting neutrality as a legitimate aim for both public and private employers without any further explanation. A duty to show a neutral image might be more acceptable for employees in public employment where it could affect the neutrality of the state, but extending this to the private sector is 'a big leap’. It must be noted that the employers in all five headscarf cases decided on by the CJEU [Court of Justice of the European Union] to date, were private employers. The pending case of OP v Commune d'Ans is an exception: it concerns a public authority (a municipal council). A fourth point of criticism was the fact that the CJEU [Court of Justice of the European Union] appeared to leave a margin of discretion to the Member States and the national courts in deciding on justification of indirect religion and belief discrimination, but did not clarify the parameters of this margin.

A fifth issue was the lack of consideration by the CJEU [Court of Justice of the European Union] of possible gender and/or racial and ethnic origin discrimination being present as well, and of the negative influence of workplace neutrality rules, not only on the employment opportunities, but also on the wider inclusion in society of people belonging to religious groups and, especially, Muslim women. Sixth, the finding that there had been indirect discrimination rather than direct discrimination was condemned, with a number of arguments being made for recognising direct discrimination. The fact that the CJEU [Court of Justice of the European Union] did not apply a very strict justification test for indirect religion and belief discrimination, which can be found in Article 2(2)(b)(i) of Directive 200/78/EC, was a seventh point of criticism. The easy acceptance of neutrality as a legitimate aim under Article 16 of the Charter, for both public and private employers, has already been mentioned above. However, the CJEU [Court of Justice of the European Union] was also severely criticised for not rigorously assessing whether the means used to achieve this legitimate aim were appropriate and necessary.

The 2021 judgment in Wabe and Müller clarified some issues relating to the meaning of the terms 'religion or belief’ and to the justification test, but did not address most of these points of critique. LF v SCRL was, therefore, the fifth headscarf case to be decided by the CJEU [Court of Justice of the European Union] and must be seen against this background. It is argued here that the CJEU [Court of Justice of the European Union] did not provide much more clarity and, therefore, failed to engage with these issues raised in the literature. Because of the serious consequences which workplace neutrality rules can have on the employment opportunities and wider integration of Muslim women, this article will focus on that aspect.

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Although it is disappointing that Collins does not engage with the gender discrimination issue, he raises some interesting issues relating to public employers, and it remains to be seen what the CJEU [Court of Justice of the European Union] will decide. The Court could, it should be noted, mostly ignore the Opinion, as it did with Advocate General Medina's Opinion in LF v SCRL. Hambler, in his analysis of the judgments in Achbita and Bougnaoui, concluded that the CJEU [Court of Justice of the European Union] has put 'greater emphasis on cultural and religious assimilation as opposed to toleration of difference and diversity’. It appears that CJEU [Court of Justice of the European Union] has continued this trend in Wabe and Müller and LF v SCRL. Will it also do so in OP v Commune d'Ans, or will it follow through on its considerations about the importance of freedom of religion for pluralism and encouraging tolerance, respect and a greater degree of diversity? The story continues.

Middlesex University, London, United Kingdom;