European Court of Justice clarifies the position on manifesting religion or belief at work
On Tuesday, the European Court of Justice (ECJ) held that the banning of a headscarf at work does not constitute direct discrimination on grounds of religion or belief. Two cases were brought before the ECJ following references from the Belgian and French courts:
- G4S in Belgium operated a policy prohibiting all employees from wearing visible signs of political, philosophical or religious belief while on duty. This policy prevented a Muslim employee from wearing a headscarf at work.
- M SA in France informed a Muslim employee that, due to the customer-facing nature of her role, she would not be able to wear her headscarf at all times. Following a site visit at M SA, a customer complained that the employee had worn her headscarf and M SA instructed her not do so.
- In each case the employee challenged the instruction not to wear a headscarf at work and in each case the employee was dismissed for not complying with the instruction. Both employees brought claims of discrimination on the grounds of religion or belief, which were not upheld by their national courts. Following an appeal in each case, the Court of Cassation referred the following questions to the ECJ:
- Is a policy, operated neutrally, banning all wearing of political, religious or similar signs, directly or indirectly discriminatory?
- On the assumption that the treatment was discriminatory, could the treatment be justified on the basis of 'genuine and determining occupational requirement'?
On examination of the facts in both cases, the ECJ drew the following key conclusions:
- Any prohibition on employees wearing headscarves at work, which arises from a general or blanket ban on political, philosophical or religious symbols, does not of itself constitute direct discrimination under EU law.
- While a general workplace ban on religious symbols may escape a direct discrimination claim it can still constitute indirect discrimination if it places one particular faith at a disadvantage, unless the policy can be objectively justified.
- It is legitimate for an employer to seek to enforce a policy of religious neutrality in relation to employee dress however this should only apply where employee comes into direct contact with the employer’s clients.
- Employers may not use a customer complaint as justification for differential treatment.
A word of caution for employers – while this is an important ruling, its purpose is not to prevent the manifestation of any one religion or belief. Consistency in the application of a religious neutral dress policy is essential to avoid a claim for indirect discrimination.