Employment Law E-Bulletin Issue 51

• Achbita and anor v G4S Secure Solutions NV (Case C-157/15) and Bougnaoui and anor v Microple SA (Case C-188/15): ECJ rulings on banning headscarves at work
• Deliveroo workers lodge claim regarding employment status
• New statutory payment figures
• Statement from Matthew Taylor on Independent Review of Employment Practices in the Modern Economy

Achbita and anor v G4S Secure Solutions NV (Case C-157/15) and Bougnaoui and anor v Microple SA (Case C-188/15): ECJ rulings on banning headscarves at work

The European Court of Justice (“ECJ”) has ruled on two cases concerning the banning of headscarves within the workplace. This follows the referral of preliminary questions in two cases from the Belgian and French courts.

In Achbita, G4S Secure Solutions (“G4S”) operated a policy prohibiting its employees from wearing all visible signs of their political, philosophical or religious beliefs. The claimant was dismissed due to her refusal to comply with the rule and remove a headscarf. She brought a claim for wrongful dismissal and discrimination. In the first instance and initial appeal, there was found to have been no direct or indirect discrimination. The Belgium Supreme Court referred a preliminary question to the ECJ, asking whether the headscarf ban amounted to direct discrimination where the dress code prohibited all employees from wearing outward signs of political, philosophical and religious beliefs at work.

The ECJ held that the ban did not constitute direct discrimination as there was no evidence of different treatment compared to other workers and so G4S was not treating one religion less favourably than another. It was, however, capable of amounting to indirect discrimination. It expressed the view that where an employer had a policy of upholding political, philosophical or religious neutrality in customer facing roles, this must be considered a legitimate aim.

In Bougnaoui, Micopole SA made it clear to the claimant, a design engineer, that she might not be able to wear her headscarf at all times, due to her client-facing role. Following a customer complaint that the claimant had worn her headscarf, she was dismissed. Again, in the first instance and at initial appeal, her claim of religious discrimination was dismissed. Upon a further appeal the question as to whether, on the assumption that Micropole SA’s treatment was discriminatory, it could be justified as being based on a genuine occupational requirement under Article 4(1) of the Equal Treatment Framework Directive (the “Directive”), was referred to the ECJ.

In this case the ECJ held that the claimant’s dismissal was direct discrimination which could not be defended on the ground of a “genuine and determining occupational requirement”. The ECJ stated that Article 4 is only available in the very limited circumstances where the requirement related to religion is objectively dictated by the nature of the occupational activities concerned or the context in which they are carried out. It does not cover subjective considerations, such as an employer’s willingness to take account of the particular wishes of a customer. It distinguished this case from Achbita on the basis that Achbita concerned a general rule implemented by the employer.

The finding in the Achbita case does not mean that employers can enforce a ban on the wearing of religious headscarves or other religious symbols in the workplace. The two cases show that a rule prohibiting the wearing of visible signs of religion or belief, which is likely to be indirectly discriminatory against certain religions, is capable of justification. Employers would, however, have to be able to illustrate why it was necessary.

The public reaction to the rulings have been significant and divided, particularly given the recent growth in restrictions on religious symbols throughout Europe and following the controversial rulings in France and Belgium in 2011 restricting the right of women to wear the full-face veil in public. Such neutrality is less entrenched in the UK and employers may therefore struggle to be able to justify the existence of a similar policy to that in Achbita unless it is on health and safety grounds.

Deliveroo workers lodge claim regarding employment status

Solicitors instructed by individuals engaged by the courier company, Deliveroo, have started the process of lodging a claim arguing that they are workers rather than self-employed contractors. If they are successful this will mean that they are entitled to the associated rights including holiday pay and the National Minimum Wage. This follows a number of workers engaged in the ‘gig economy’ challenging their employment status in recent months.

The couriers will argue that the company’s current working practices which include mandatory branded uniforms, formal appraisals, interviews and online tests, mean self-employed status is unjustified. They are also subject to specific instructions as to how and where they work.

The question of employment status within the gig economy is a popular one at present, with the Review of Employment Practices in the Modern Economy (as mentioned below), as well as the Scottish Affairs Committee inquiry into sustainable employment which has focused on the gig economy this week.

New statutory payment figures

The Social Security Benefits Up-rating Order 2017 SI 2017/260 will increase the standard rates of statutory maternity pay, paternity pay, adoption pay and shared parental pay to £140.98 per week (or 90% of an individual’s average weekly earnings if lower). The standard rate of statutory sick pay will also increase to £89.35 per week from 6 April 2017.

In addition, from 1 April 2017, the national living wage for workers aged 25 and over will increase to £7.50 per hour under the National Minimum Wage (Amendment) Regulations 2017 SI 2017/465. The national minimum wage rates will also increase as follows:

• the rate for workers aged 21 – 24 increases to £7.05 per hour;
• the rate for 18 – 20 year olds increases to £5.60 per hour;
• the rate for 16 – 7 year olds increases to £4.05 per hour;
• the apprentice rate increases to £3.50 per hour; and
• the accommodation offset increase to £6.40 per hour.

Statement from Matthew Taylor on Independent Review of Employment Practices in the Modern Economy

As we have noted in previous bulletins when reporting on recent decisions concerning employment status within the gig economy, Matthew Taylor is set to chair a review of employment practices in the modern economy.

In a recent interview with Robert Preston he stated that the review, which will be published later this year, will recommend changes to the rights of self-employed workers. He commented that the current guidance on the differences between a self-employed worker and an employee were inadequate

These comments follow the publication of research from the CIPD which suggests that the gig economy has significantly improved the incomes of those working within it. In a survey of 400 economy workers and 2,000 traditional workers, 32% of respondents said they worked in the gig economy to boost their income, while 46% were satisfied with their working circumstances. In addition 50% respondents said that they had chosen to engage in insecure work to achieve greater flexibility and independence. That being said, the downsides of working in the gig economy were recognised, as 57% of respondents suggested that gig economy companies exploited the lack of regulation to achieve instant growth and 63% of respondents believed that the government should guarantee basic employment protections for gig economy workers.

We will have to watch this space to see what Mr Taylor’s report says, but these are interesting comments, particularly in light of the recent cases concerning individuals working within the gig economy.