March 31, 2017

ECJ rules headscarf ban was not direct discrimination

European Court of Justice

At first glance, a reader could be forgiven for thinking that the ECJ had sanctioned a Europe wide ban on employees wearing the Muslim headscarf (the hijab). A little more careful reading may have uncovered the fact that the ruling was applicable across the board to all religions – but this would be about as far as one might get.

What has the ECJ actually decided?

In reality, the decision (in fact, two decisions – one originating from  Belgium, the other from France) does not give free reign to employers to create a "ban" on employees wishing to wear religious clothing or other items in the workplace. Nonetheless, it does provide some sensible commentary on the relevant principles that apply and the issues that employers should bear in mind.

The most straightforward principle to emerge is that it will not amount to direct discrimination for an employer to impose a rule that prohibits employees from wearing any visible signs of their political, philosophical or religious beliefs if (1) such a ban affects all employees equally and (2) it can be objectively justified.

In the Belgian case of Achbita and anor v G4S Secure Solutions NV, the employer was found to be justified in dismissing a receptionist for failing to remove her headscarf on the basis that it was seeking to uphold its corporate policy of ideological neutrality. On the other hand, in the French case of Bouganoui and anor v Micropole SA, prohibiting an employee from wearing a headscarf in response to a customer’s objection rather than by reference to a general policy amounted to  direct discrimination.

It is also important to consider the decisions in the political and social context of the countries from which the cases arrived at the ECJ. The separation between Church and State is a fundamental principle of French public law– so it is well understood in French society that religious expression is something to be confined to the personal and private arena. This is very different from the UK where there has been a long tradition of acceptance of the desire of individuals to manifest their religious belief in all aspects of their daily lives.

The impact on UK employers

So, while this decision may well to give rise to overall workplace bans in some continental European countries, it is unlikely to have a significant impact on the practice of many UK employers.  Employers do have the freedom to conduct their business as they consider appropriate – including by the use of formal dress codes. However they should also be wary that, while a comprehensive ban on religious, political and philosophical symbols might not amount to direct discrimination, it is capable of amounting to indirect discrimination. Any employer considering some form of ban or restriction must have a clear and objectively justifiable policy which ensures that all religions and beliefs are treated equally.

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