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Anti-discrimination laws and the European Court of Human Rights

If the UK leaves the EU, will the ECJ and the ECHR have the final say on employment and discrimination legislation?

When the UK joined the European Union in 1973 it gave up the right to have the final say on employment and discrimination law. UK courts must accommodate European treaties, laws and decisions of the European Court of Justice (ECJ) when bringing in legislation and making decisions. All discrimination law (except for equal pay) is contained within three EU Directives and the UK government is expected to bring in and enforce laws that reflect these.

While we remain in the EU UK court decisions can be challenged in the ECJ because they do not comply with EU law. They can also be challenged in the European Court of Human Rights (ECHR) because we have a Human Rights Act and have signed up to the 47 nation Council of Europe (not the EU) but this will be unaffected by the UK leaving the EU.

In Eweida v British Airways Eweida went to the ECHR saying that the UK courts had been wrong to conclude that BA could justify its corporate dress code that banned jewellery on the grounds of maintaining a corporate image. This policy meant Eweida was unable to wear her Christian crucifix and this had breached Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which says that employees have the right to visibly display signs of their faith, and Article 14, which says they should be free from discrimination in the exercise of this freedom.

The ECHR agreed with Eweida; saying that the ban was not proportionate and the UK courts had given too much weight to the need for BA to maintain its corporate image, especially given the lack of evidence to support that a discreet cross had any effect on corporate image.

It is not just the UK whose decisions are challenged at the ECHR and ECJ. In Achbita v G4S Achbita was a Muslim receptionist in Belgium who wanted to wear an Islamic headscarf but G4S had rules banning employees wearing any religious, political or philosophical symbols while on duty. Achbita lost her claims of direct/indirect discrimination on the grounds of religious beliefs in the Belgian courts.

Achbita went to the Belgian Court of Appeal, which asked the ECJ to rule on whether a ban on female Muslim employees wearing a headscarf at work constituted direct discrimination contrary to EU law. The opinion of the ECJ’s advocate general was that it was not direct discrimination and even if it had been, the ban could be justified given G4S's policy of neutrality and under the ‘genuine and determining occupational requirement’ exemption. However, it is for the courts in Belgium to consider whether the clothing neutrality policy causes undue prejudice to employees. The ECJ can either agree with or ignore this opinion.

Any HR division implementing a dress code that might adversely affect employees, especially on the grounds of religion, needs to ask itself what the purpose of the policy is. Because this will be carefully examined by the courts. Is there a better way of doing it that does not negatively affect those who want to exercise their right to visibly display signs of their faith?

Currently any UK decision is open to challenge at the ECJ on the basis that it is contrary to EU law. If the UK left the EU then the practical effect would be that the UK's Supreme will have the final word in cases. It is however highly unlikely that current employment and discrimination legislation, which has worked well for years, will be abolished or replaced. However, leaving the EU is unlikely to have any effect on challenges through the ECHR.

Beverley Sunderland is managing director of Crossland Employment Solicitors