Hospital dress code did not breach Article 9 ECHR

 

In Ebrahimian v France, the European Court of Human Rights has held that a hospital worker whose contract was not renewed after she refused to remove a headscarf, worn for religious reasons, while at work, did not suffer a breach of her right to religious freedom under Article 9 of the European Convention on Human Rights. The ECtHR held that the principle of secularism and the neutrality of public services justified the interference with the worker’s right to manifest her religious beliefs.

E, a Muslim woman, was engaged under a fixed-term contract as a ‘social assistant’ in the psychiatric unit of a hospital in Nanterre, France. At her interview she had worn a headscarf, which covered her hair, neck and ears but left her face unobstructed. She continued to wear the headscarf while working, which involved acting as a liaison between patients, the hospital and social services. After just over a year of work, the hospital informed E that her contract would not be renewed since she had refused to remove the headscarf, in breach of hospital rules, which had given rise to complaints from patients.

E complained about the non-renewal to a tribunal. She was unsuccessful at first instance but an appeal court held that there had been irregularity in the procedure by which E had been informed of the non-renewal. The appeal court considered that the real reason for the non-renewal was not simply the breach of a dress code that applied to all public service workers but the fact that E’s wearing of the headscarf was a visible manifestation of her religious belief. The appeal court therefore quashed the hospital’s decision. The hospital then re-took the decision and confirmed the non-renewal of E’s contract, this time making it clear that the reason was her religiously-motivated insistence on wearing the headscarf at work. E brought new proceedings to challenge this ground of non-renewal. A tribunal rejected the complaint, finding that the non-renewal of E’s employment for wearing a garment that ‘ostentatiously’ manifested her religion was justified by the principle of secularism and the neutrality of public services. E twice appealed unsuccessfully and eventually lodged a complaint in the European Court of Human Rights. She argued that the non-renewal of her contract was a breach of her right to manifest her religion under Article 9 of the European Convention on Human Rights.

The ECtHR rejected E’s complaint by a majority of six to one. It accepted that E’s Article 9 rights were engaged and that there was a prima facie infringement. However, it considered that the infringement was justified under Article 9(2). The ECtHR was satisfied that it was ‘prescribed by law’, as Article 9(2) requires, since the French Constitution enshrines the principle of secularism, and case law from the Constitutional Court and the Conseil d’Etat (the highest court in matters of public and administrative law) has consistently held that the neutrality of public services is an important part of that principle. The ECtHR accepted that no national legislation or case law specifically prohibited hospital workers from wearing an Islamic headdress. However, it relied on a judgment of the Conseil d’Etat, decided six months before the non-renewal of E’s contract, which endorsed a similar restriction in relation to teachers. In the ECtHR’s view, this judgment should have made it clear that the same standard could be expected of all public service workers.

The ECtHR went on to hold that the infringement of E’s Article 9 rights had the legitimate aim of protecting the rights and freedoms of others, having regard to the principle of secularism and public service users’ rights to receive services free from discrimination. It also accepted that the application of the rule to E was ‘necessary in a democratic society’. While there was no suggestion that E had been proselytising or putting patients under pressure, it could reasonably be considered necessary to prevent a public hospital worker from manifesting her religious beliefs in the exercise of her functions, in the interests of ensuring the equal treatment of patients. As for whether this was a proportionate means of preserving secularism and neutrality, the ECtHR accepted that E had suffered serious consequences for manifesting her religious convictions. However, it was satisfied that, following the Conseil d’Etat’s decision in the teachers’ case, E knew that she was expected to conform to a neutral dress code while at work and that she had been asked to reconsider her decision. In these circumstances, the non-renewal of her contract for failure to comply was proportionate.

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Early conciliation certificate not required for claim added by amendment

In Science Warehouse Ltd v Mills, the EAT has held that a claimant was not required to go through the early conciliation (EC) procedure in respect of a victimisation claim that she wished to add, by way of amendment, to her existing claim of pregnancy/maternity discrimination. The amendment of existing proceedings is a matter for the tribunal’s case management powers and the tribunal is not required to refuse to add a claim in respect of which the EC procedure has not been observed.

M was employed by SW Ltd from April 2013 until she resigned, during her maternity leave, on 9 March 2015. On 28 January 2015 she had submitted details of prospective claims of sex and pregnancy/maternity discrimination under Ss.13 and 18 of the Equality Act 2010 to Acas. She received an EC certificate on 27 February and on 8 April she presented the tribunal claim. SW Ltd’s response to that claim included an allegation that M would have been investigated for misconduct had she not resigned. M wished to bring an additional claim of victimisation, under S.27 EqA, based on this allegation. She made an application to amend her claim to include this ground. SW Ltd objected to the amendment solely on the basis that M had not complied with the EC procedure in relation to the additional claim. The tribunal dismissed that objection and allowed the victimisation claim to be added. SW Ltd appealed to the EAT.

The EAT dismissed the appeal. HHJ Eady QC, sitting alone, noted that the power to allow a new claim to be added by way of amendment is a matter of judicial discretion, to which no time limit formally applies. As for the EC procedure, S.18A of the Employment Tribunals Act 1996 requires that it is complied with in relation to any ‘matter’, rather than any ‘cause of action’ or ‘claim’. HHJ Eady QC rejected SW Ltd’s argument that ‘matter’ had to be read as referring to the claim in question. A broader interpretation was required, in order to avoid the EC rules giving rise to disputes and satellite litigation as to whether proper notification had been given of each and every possible claim subsequently made to the tribunal. Although amendments to an existing claim are not listed in S.18A(7) as a category of exception to the EC rules, this is because amendment is a matter for the tribunal’s case management powers in respect of which no specific exemption is needed.

HHJ Eady QC went on to reject SW Ltd’s contention that this broad interpretation would undermine the objective of the EC procedure by allowing new claims to be accrued without conciliation. Amendments are only permissible if allowed by the tribunal. If the tribunal refuses permission then the claimant might become a prospective claimant in respect of the new matter, within S.18A ETA, and so might have to invoke the EC procedure. If the amendment is permitted, however, the EC process does not arise. Accordingly, the tribunal in the present case was not bound to decline to add the new claim, which could not have been the subject of the original EC process. Had the subsequent claim been entirely unrelated to the existing proceedings then the tribunal might have refused to admit it, but that decision would be informed by a variety of factors, not merely the fact that no EC process could have been engaged in.

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No disparate treatment in dismissal when circumstances are not sufficiently similar.

In MBNA Ltd v Jones, the EAT has overturned a tribunal’s finding of unfair dismissal on the basis of inconsistent treatment. The tribunal had not been entitled to find that there was an unreasonable disparity of treatment between an employee who was dismissed for punching a colleague at work event and the colleague who was given a final written warning for sending threatening texts to that employee after the work event had finished.

J was employed by MBNA Ltd, a bank, as a collections officer. On 8 November 2013, MBNA Ltd held an event at Chester Racecourse to celebrate its 20th anniversary. Staff were told that it was a work event and that normal procedures and guidelines with regard to conduct would apply. At the event, there were some incidents between J and a colleague, B, which onlookers described as ‘fun/banter’ but which culminated in J punching B in the face. After J had left the work event, B texted him seven times, threatening serious violence. However, there was no further incident between them. MBNA Ltd investigated the incidents and the same person, H, undertook disciplinary hearings in both J’s and B’s cases. He found that there had been no substantive provocation before J punched B and that the incident risked reputational damage to the company. H concluded that J should be dismissed for gross misconduct. As for B, H found that the text messages were of an extremely violent nature but that they were sent as an immediate response to J hitting B. Although he considered that this also amounted to gross misconduct, the appropriate penalty was a final written warning. J claimed unfair dismissal.

A tribunal upheld J’s claim. It reasoned that, had both J and B been dismissed for what were proven (and unarguable) acts of gross misconduct, then both dismissals would have been fair. However, it considered that there was an unreasonable inconsistency in treatment between J and B. In particular, the tribunal considered that H had not been entitled to conclude that the text messages sent by B were in ‘immediate response’ to J punching him; and that the ‘defence of provocation’ was applied differently to B. There was thus a disparity of treatment which rendered J’s dismissal unfair. MBNA Ltd appealed to the EAT.

The EAT allowed the appeal. It pointed out that, when considering a claim of unfair dismissal based on disparity, the tribunal must focus on the treatment of the employee bringing a claim – if it was reasonable for the employer to dismiss this employee, the mere fact that the employer was unduly lenient to another employee is neither here nor there. Following Hadjioannou v Coral Casinos Ltd 1981 IRLR 352, EAT, an employer’s decision made in a truly parallel case may support the argument that it was not reasonable to dismiss the employee, but it will be rare for the facts to be sufficiently similar. Here, the tribunal had erred by considering whether MBNA Ltd was unreasonably lenient in B’s case – it should have focused on its treatment of J. It also erred in finding that the ‘defence of provocation’ was applied inconsistently. The tribunal had apparently concluded that MBNA Ltd made different decisions in indistinguishable circumstances but this was not the correct legal test. The tribunal had permissibly found that J’s misconduct was sufficient to warrant dismissal. Applying the Hadjioannou test, it would have been perverse for it to treat a deliberate punch in the face at a work event as sufficiently similar to threats made by text thereafter. There was therefore no question of disparate treatment and so the conclusion had to be that the dismissal was fair. A finding of fair dismissal would therefore be substituted for the tribunal’s decision.

Link to transcript

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