The EU Court of Justice today handed down two judgments in cases concerning employers’ restrictions on the wearing by employees of Islamic headscarves and religious symbols.  In giving its judgments, the Court has clarified the law on the distinction between the concepts of “direct discrimination” and “indirect discrimination”.  The judgments will be welcomed by the UK Government, which intervened in the two cases to urge the Court to maintain a clear principled distinction between the two concepts.

The first judgment was given in the case of Achbita (Case C 157/15), an employment dispute in Belgium concerning a Muslim woman who was dismissed from her employment as a receptionist.  The reason for her dismissal was her refusal to stop wearing a headscarf at work, which her employer considered to be contrary to its policy prohibiting employees from wearing “visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”.  The particular issue referred by the Belgium court to the EU Court of Justice was whether the employer’s actions should be classified as “direct discrimination” (since they targeted Ms Achbita’s clothing choices because of their link with her religious beliefs) or as a potential case of “indirect discrimination” (since a prohibition on wearing clothes associated with particular religious or other beliefs limits the clothing choices of all employees regardless of their religious beliefs, albeit that the prohibition would in practice have a particular impact on people whose religious beliefs require them to dress in a manner associated with those beliefs).

The second judgment was given in the case of Bougnaoui (Case C 188/15), an employment dispute in France concerning a Muslim woman who was dismissed from her employment as a design engineer working on projects for the employer’s customers.  The reason for her dismissal was her refusal to stop wearing a headscarf at work, following requests made by the employer in response to complaints they had received from their customer at whose premises Ms Bougnaoui was working.  The French court, which appears to have classified the case as one of “direct discrimination”, asked the EU Court of Justice whether the employer’s instruction to Ms Bougnaoui to stop wearing the headscarf could be justified by reason of a “genuine occupational requirement” constituted by the employer’s commercial need to comply with the demands of its customer.

In its two judgments, the Court of Justice explained that an employer’s restriction on an employee’s clothing choices is to be classified as “direct discrimination” only if that restriction is on the basis of the employee’s religion (which would be the case if, for example, an employer placed certain restrictions on the dress choices of Muslim employees but not on those of other employees).  Dress restrictions that apply to all employees without regard to their religious beliefs will, however, constitute “indirect discrimination”, and will therefore be unlawful, where they result, in fact, in employees with religious or other “protected characteristics” being put at a particular disadvantage and are not “objectively justified”.

The Court of Justice took pains to emphasise that its judgments should not be seen as allowing employers to restrict, without good reason, employees from dressing compatibly with their religious beliefs.  In particular, the Court stated that requests or complaints made by an employer’s customers could not, in themselves, constitute objective justification, since otherwise employers would be able to justify discrimination by relying on their customers’ prejudices.

The Court of Justice’s judgments essentially reflect the submissions of the UK Government, which urged the Court to: (a) promote legal certainty by limiting the concept of “direct discrimination” to situations where an employer has subjected an employee to particular treatment on the basis of his or her race, sex, religion, sexual orientation or other “protected characteristic”; (b) query the French court’s classification of the Bougnaoui case as one involving “direct discrimination”; and (c) emphasise that restrictions on employees’ manifestations of their religious beliefs cannot be justified by reference to the prejudices of an employer’s customers.

Monckton barrister Alan Bates represented the United Kingdom in both cases.

BT had agreed to “legally separate” Openreach.

For the last two years, Anneli Howard has been advising BT on the extent of OFCOM’s legal powers regarding its regulation of access to broadband infrastructure as part of its Strategic Review of Digital Communications.  In particular, Ofcom has been consulting on proposals to split Openreach –  the division of BT that owns and operates its broadband network – into a separate legal entity that is entirely independent of BT. That degree of separation would be far more extensive than the functional separation arrangements adopted back in 2005. Anneli drafted the detailed response by BT to Ofcom’s July consultation and has been advising BT on its regulatory strategy.

On 29 November 2016, Ofcom announced that it intended to proceed with mandating the legal separation of Openreach, the wholesale broadband services provider, from the rest of the BT Group.

On 10 March 2017, it was announced that BT and Ofcom have reached agreement on a long-term regulatory settlement that will see Openreach become a distinct company with its own Board as part of the BT Group. Around 32,000 employees will transfer to the new entity once pension arrangements are in place and Openreach Limited will have its own brand without the BT logo.

The agreement is based upon voluntary commitments submitted by BT that the regulator has confirmed address all its competition concerns.

Anneli Howard leading Daisy Mackersie was instructed by Freshfields Bruckhaus Deringer.

See BT news release.

The agreement has attracted wide media attention including: BBC; Telegraph; The Guardian; Sky News; FT; Daily Mail; CNBC; City A.M.; The Times.

The Court of Appeal has just given judgment in a landmark case concerning the limits on the Home Secretary’s powers to detain unaccompanied children for immigration purposes.

In June 2016, the High Court (Sir Stephen Silber) ruled that it was unlawful for the Home Secretary to detain unaccompanied children under her immigration powers for any longer than 24 hours, and in any facility other than a “short term holding facility”, irrespective of the fact that the detaining official may have reasonably believed that the individual in question was an adult. Our news item on the High Court’s judgment can be found here.

The Court of Appeal (Davis, Underhill and Lindblom LJJ) has now unanimously dismissed the Home Secretary’s appeal from the High Court’s judgment, ruling that the relevant provisions of Schedule 2 to the Immigration Act 1971 (as amended by the Immigration Act 2014) unambiguously prevented the Secretary of State from lawfully detaining the Claimant for substantially in excess of 24 hours in an adult immigration removal centre, in the circumstances where it was common ground that the Claimant was in fact a child while he was detained. Given the Home Office’s policy of detaining individuals claiming to be children on the basis that their physical appearance very strongly suggests that they are significantly older than 18, the case has potentially far-reaching consequences for the immigration detention of children in the future, a point that is reflected in the fact that the Secretary of State is seeking permission to appeal to the Supreme Court.

Ian Wise QC and Michael Armitage represented the Claimant, who was successful in the Court of Appeal.

Michael Armitage acted as a sole counsel for the successful Claimant in the High Court.

Please click here to read the judgment.

The Court of Appeal this week rejected a challenge to the UK’s rules on the rights of non-EU nationals who are, or have been, family members of EU nationals residing in the UK: Shakeel Ahmed v Secretary of State for the Home Department [2017] EWCA Civ 99.

The Appellant, a national of Pakistan, was the ex-husband of a Polish national who had been working in the UK at the time of their marriage.  UK legislation implementing the EU Citizenship Directive (Directive 2004/38/EC) provided that, in order to retain a right of residence in the UK following divorce from an EU national, a person in the Appellant’s position had to be working or self-sufficient at the time of the divorce.  Since, in this case, there had been a four month gap between the divorce and the date on which the Appellant commenced employment, the Home Secretary decided that the Appellant had not retained a right of residence in the UK.

Whilst there was no dispute that the Home Secretary had correctly applied the domestic legislation, the Appellant argued that the Directive imposed no such requirement and that the UK legislation was therefore incompatible with EU law.  In a judgment handed down on 28 February, the Court of Appeal rejected this argument.  Giving judgment for the Court, Lady Justice Arden held that, under article 13(2) of the Directive, a non-EU national was required to be working or self-sufficient at the time of the divorce in order to retain a right of residence thereafter.  As such, the UK legislation correctly implemented EU law and the appeal was dismissed.

With this week’s defeat in the House of Lords, the post-Brexit rights of EU nationals living in the UK is one of the most significant issues facing the Government at present.  Whilst the position of non-EU nationals has received less media attention thus far, the Court of Appeal’s judgment is a timely reminder that any steps taken to protect the position of EU nationals in the UK following Brexit will have to deal with the position of any non-EU family members, including what happens to them in the event of a marriage breakdown.

Ben Lask represented the Home Secretary.

Please click here to read the judgment.

In a judgment handed down this week, the Employment Tribunal dismissed all test claims brought by five firefighters alleging that transitional arrangements included in the Firefighters’ Pension Scheme 2015 are discriminatory.

The changes to firefighters’ pensions were part of the wide-ranging public sector pension reforms brought in after the 2011 Hutton Report concluded that since people are living longer, public sector pensions needed to be revised to make them sustainable for the taxpayer.

However, the claimants’ challenge was only to the transitional arrangements in the new pension scheme, whereby those firefighters within 10 years of pension age are protected by being able to remain in their existing pension scheme. There are also a further four years of tapered protection. It was alleged that such arrangements were directly discriminatory on grounds of age.

The Defendants – four Fire and Rescue Authorities, the Home Office and the Welsh Ministers – accepted that the transitional arrangements treat younger firefighters less favourably on the grounds of age, but argued that this is justified since it is a proportionate means of achieving a legitimate aim. The aim is to protect those closest to pension age from the effects of pension reform, given that they would have less time in which to rearrange their affairs before retirement, by making any necessary financial or lifestyle changes.

Judge Lewzey (sitting alone) accepted that this aim was legitimate, and that the treatment of the claimants was a proportionate means of achieving it, and accordingly the claims of direct age discrimination failed. The Tribunal also accepted that those closest to retirement have a greater legitimate expectation that their pension entitlements will not change significantly.

The claimants also brought claims for equal pay and claims of indirect discrimination on grounds of sex and/or race, as female and BME firefighters are disproportionately likely to be in the unprotected group. Male firefighters also brought ‘piggy-back’ equal pay claims. All claims failed.

Behind the five test claimants were over 5000 claims in England and Wales.

Similar claims had been successfully pursued in McCloud & Others v Ministry of Justice in relation to the transitional protection provided within the judges’ pension scheme. Judge Lewzey noted that the McCloud judgment of 16 January 2017 was not binding upon the Tribunal and that she must decide the firefighters’ case on the basis of the evidence and submissions she heard, and in those circumstances she disregarded the McCloud decision in reaching her conclusions.

Raymond Hill and Imogen Proud acted for the Home Office and the Welsh Ministers.

 

The High Court has heard a challenge brought by Campaign Against Arms Trade (“CAAT”) in respect of the granting of licences by the United Kingdom in respect of the sale of arms to Saudi Arabia for use in its military operations in Yemen.

Yemen is presently engulfed in a bloody civil war in which  Houthi forces loyal to former president Ali Abdullah Saleh have launched an insurrection against the government  of Abdrabbuh Mansur Hadi.  A coalition of Gulf states is conducting air and ground operations in Yemen in support of the Yemeni government. Grave concerns have been raised about the conduct of these military operations. A wide range of international bodies, including the UN Security Council’s Panel of Experts on Yemen has concluded that the Coalition’s air strikes in Yemen are likely to have involved serious violations of the laws of war, including war crimes and possibly crimes against humanity.

CAAT seeks an injunction to prevent the licensing of further military equipment on grounds that there is a clear risk that such equipment might be used in serious violations of international humanitarian law.

Conor McCarthy, instructed by Leigh Day, is junior counsel for the Claimant.

Nikolaus Grubeck, instructed by Debevoise and Plimpton, is junior counsel in the proceedings for a coalition of intervenors (Human Rights Watch, Amnesty International and Rights Watch UK).

In a judgment in a test case handed down today, the Court of Appeal upheld tribunal judgments awarding a boy (known as “John”) £120,000 under the Vaccine Damages Payments Act 1979 (“the Act”).

It was agreed that John’s narcolepsy with cataplexy was caused by his vaccination against H1N1 flu in 2009.  He has sudden attacks of day-time sleepiness and a tendency to collapse to the ground, as well as permanent severe tiredness.  The uncontested evidence was that John’s condition is unlikely to improve as he grows up.

Under the Act, any person who suffers injury as a result of most types of routine vaccination is entitled to an award of £120,000 if they meet a test of “60% disablement”.  The appeal dealt with various issues as to how 60% disablement was to be assessed.

The Tribunal looked at John’s disablement not just as it affected him as an 11-year old (his age at the time of the Tribunal decision) but at how it would affect him over his future life.  The Tribunal took into account, in particular, the effects that narcolepsy with cataplexy would have on him as he becomes a young man, such as disruption to exams, inability to drive, and effects on his social life.  The DWP said that that approach was wrong and that the Tribunal should have limited its consideration to how his condition affected John as an 11-year old.

The Court of Appeal dismissed the DWP’s appeal.  It accepted John’s argument that the DWP’s interpretation was inconsistent with the fixed-sum nature of the scheme and that it “potentially turn[ed] the scheme into a litigation game” where entitlement to the award would depend on the exact timing of the claim and of appeals.  The Court of Appeal also agreed with John’s case that the Tribunal had been entitled to refer, in support of its conclusion, to a statutory schedule of percentages of disablement used in industrial injury benefit cases, and noted John’s point that, under that schedule, a double leg amputee such as Oscar Pistorius would be 100% disabled.

The result is likely to affect over 100 other cases where narcolepsy with cataplexy has been caused by vaccinations in 2009-10 against H1N1 flu.  The cases were the subject of a Channel 4 documentary broadcast in March 2015 (“The kids who can’t stay awake”) covered here.

George Peretz QC and Conor McCarthy acted for John.  Further details about the case, and the other cases standing behind it, are available here.