The European Court of Justice (“ECJ”) recently determined that a company policy banning employees from wearing religious signs such as Islamic headscarves is not necessarily discriminatory. We examine the key principles arising from two recent decisions and their potential importance for employers.

In the two joint cases of Case C‑157/15 and Case C-188/15, the ECJ examined whether the dismissal of two Muslim employees for wearing headscarves to work was unfair. The ECJ confirmed that a generally-applied company rule prohibiting the visible wearing of signs of political, philosophical or religious belief is not directly discriminatory. However, it determined that the rule may be indirectly discriminatory, unless certain tests are met.

The Equal Treatment Directive 2000/78/EC provides for equal treatment between employees on grounds of disability, sexual orientation, religion or belief and age in the workplace. It was incorporated in Ireland in the Employment Equality Acts.

The Cases

Case C‑157/15 - G4S Secure Solutions

Ms Achbita was employed as a receptionist in G4s, a private company which provided reception services in both the public and private sector. In advance of her commencement with the company, Ms Achbita had been made aware of their unwritten company policy which prohibited the wearing of visible signs of political, philosophical or religious beliefs in the workplace.

Ms Achbita informed her employer that she was going to start wearing an Islamic headscarf to work. This was refused by her employer due to its position on neutrality adopted in its contracts with customers. After a brief period of sick leave, Ms Achbita wore her headscarf upon her return to work, was asked to remove it and refused. Ms Achbita was subsequently dismissed.

The ECJ determined that applying the same internal policies unilaterally to all employees did not amount to direct discrimination.

However, indirect discrimination may arise when an employer treats all employees the same, but where it puts some employees at a particular disadvantage. Such indirect discrimination may be permissible provided it is justified by a legitimate aim, the means of which are appropriate and necessary. The ECJ agreed that the company rule may be indirectly discriminatory and it was for the national courts to determine if it was lawful.

But the ECJ was willing to set out some guidance for Member States to determine if indirect discrimination arose or, alternatively, whether the employer’s desire to project neutrality towards its customers was lawful. These include;

  1. whether the ban is appropriate to ensure the company policy of neutrality is properly applied and that it is genuinely pursued in a consistent and systematic manner;
  2. whether the ban only applied to those with customer facing roles; and
  3. whether there were alternative non-customer facing roles that the employee could have taken up which would have allowed her to continue to wear her headscarf.

Case C-188/15Bougnaoui and ADDH

Before commencing her employment, Ms Bougnaoui had been informed by her employer that there might be an issue with her wearing an Islamic headscarf to work. During her internship, Ms Bougnaoui wore a bandana to work. Following successful completion of the internship, her employer offered a contract of indefinite duration. She began wearing a headscarf and a customer complained. Ms Bougnaoui was asked to refrain from wearing the headscarf. She refused her employer’s request and was subsequently dismissed.

The ECJ in this case, agreed with G4s that whilst not directly discriminatory, a blanket ban on headscarves could be indirectly discriminatory. However, the French court had also asked the ECJ whether the willingness of an employer to take account of the wishes of a customer to no longer have that employer’s services provided by a worker wearing an Islamic headscarf may be considered a ‘genuine and determining occupational requirement’. The ECJ commented that only in very limited circumstances could a characteristic, particularly relating to religion, constitute a genuine and determining occupational requirement.

Conclusion

The ECJ has not, contrary to popular reporting in the media, signalled a carte blanche to employers to impose a headscarf ban. Employers must tread very carefully when dealing with employees’ religious beliefs and should consider whether a dress code, albeit universally applied, will still be indirectly discriminatory.

Employers who encounter disputes with employees with regard to dress codes and the sensitive issues of religious beliefs should take legal advice before proceeding to discipline or dismiss an employee.