In IX v WABE eV (Cases C‑804/18 and C‑341/19) EU:C:2021:594, the ECJ recently ruled that a ban on all visible signs of political, philosophical and religious belief could be justified by a policy of political, philosophical and religious neutrality in a particular workplace (a non-denominational school in Hamburg). It was made clear that a “neutrality” policy by an employer may represent a legitimate aim (although proportionality would have to be shown about the means for achieving it), as could a policy of “avoiding social conflict”. Essentially, it was not discriminatory to ask a Muslim member of the teaching staff not to wear a headscarf, and to discipline her for refusing to remove it, because the school and the municipality were fostering the individual and free development of children which could be undermined by wearing religious dress and symbols in front of them. The same rule did not apply to those in head office.
We could talk about the case law on the limits of being able to manifest your religion in the workplace, or the competing strands that call for protection on the diversity front (I agree that this case represents the erosion of the prohibition of discrimination on the grounds of religion and belief through elevation of the rights of employers and, in this case, parents. So much for Eweida v United Kingdom [2013] ECHR 37). But I’d like to consider what it means for corporations increasingly to be defining what is an acceptable and desirable way for us to be expressing our ideology.
This used to be (and still is) one of the remits of the state. As it was pointed out in the famous case of R (Begum) v Denbigh High School Governors [2006] UKHL 15 (about why a school uniform policy banning the jilbab was justified), part of the role of the state in the context of education is to enable children to choose the ideological space they wish to occupy, as between the dominant culture of their families and the dominant culture in society:
“A mandatory policy that rejects veiling in state educational institutions may provide a crucial opportunity for girls to choose the feminist freedom of state education over the patriarchal dominance of their families. Also, for the families, such a policy may send a clear message that the benefits of state education are tied to the obligation to respect women’s and girls’ rights to equality and freedom” (Professor Frances Radnay in “Culture, Religion and Gender” [2003] 1 International Journal of Constitutional Law 663, cited in Denbigh).
As corporations become more ideologically involved, attaching ethical allegiances to particular causes and organisations around sustainability, diversity and ethical labour standards, they invite workers to champion and celebrate certain causes, and to become vocal about supporting sponsored company values. Think of all the different symbols that have become commonplace as something to be shown and worn in the workplace: a pink wristband, a rainbow, a yellow ribbon, a moustache in November (you could think of them as acceptable dress code).
But are we at risk of being homogenised, in terms of our identities at work, if we are presented with predetermined “good causes” which we are invited to sign up to? What is wrong with an invite, you might say, no one is compelled to do anything. I suppose I am asking where the space is to work out, like the hypothetical girl in the Denbigh case example, where you stand with regard to your own personal dominant culture, and the corporation’s dominant culture, and to not always know where you stand.
The idea of the corporation as being the expression of human values, rather than a mere legal personality for Companies House purposes, is a relatively recent phenomenon but we seem to accept it has always been this way. Interestingly, many organisations now put “passionate” and “creative” at the heart of their search for candidates, which would not have been the case 20 years ago when strength of conviction was regarded as something private. Like an ideal love-match (possibly forged by an algorithm), the passionate worker and the passionate employer are destined to meet and set the world on fire. But what if the best lack all conviction and the worst are full of passionate intensity?
Could there be too much pressure for individuals to take on corporate ideology at the expense of the many ordinary aspects of their humanity, such as the ability to question, doubt and not know? Qualities which, according to a recent report on the robotisation of work, could make them more employable in future?
We are used to thinking of dress codes as something imposed by employers, for employees to conform to or not, with the debate usually centring around a person’s right to freedom to express or manifest their belief and the employer’s right to police individual expression in the interests of conducting business and serving their customers. But we are less used to the idea of the corporation itself being the sheer embodiment of a dress code which may offend the idea of space or neutrality within the workforce (and bear in mind that the absence of belief is capable of protection in law).
We are used to thinking of employers as wanting, potentially, to pursue a policy of neutrality, based on ethos or customer profile. But what if neutrality is the desired safe space for a significant group of employees in a workplace, not because they are discriminatory or indifferent to value-based agendas, but because they express their values differently to the ways identified by the corporation as appropriate and desirable?
The avoidance of social conflict was cited in WABE as a potential legitimate aim for an employer pursuing a policy of neutrality. But it seems that corporations are sailing right into the headwinds of social conflict by taking up so much ideological space as a core activity. By becoming the gatekeepers of appropriate expression of values and belief, they have to take a stand, or not, or be judged by their silence.
All views expressed are the author’s own.
Shireen Shaikh, Senior PSL, Taylor Wessing.
