In two recent cases, the European Court of Justice (ECJ) has held that a company’s rule prohibiting all employees from wearing any political, religious or philosophical symbols was not direct discrimination, but could be indirectly discriminatory unless objectively justified.

Despite press reports to the contrary, the ECJ has not given employers complete freedom to ‘ban’ Islamic headscarves (or Hijab). In reality, employers wishing to do so will face several legal hurdles and should tread very carefully.

Background

In Achbita and anor -v- G4S Secure Solutions NV (G4S), the claimant worked as a receptionist in Belgium until her dismissal for her intention to wear the Islamic headscarf. G4S’s employee code of conduct stated that employees were ‘not permitted to wear any religious, political or philosophical symbols while on duty'.

The claimant brought a claim against G4S for wrongful dismissal and/or religious discrimination. The domestic courts initially dismissed her claim, but on appeal referred a preliminary question to the ECJ as to whether the employer’s general rule banning religious, political and philosophical symbols amounted to direct discrimination.

Similarly, in Bougnaoui and anor -v- Micropole SA (M SA), the claimant was employed as a design engineer in France. It was made clear to her at the outset of her employment that, due to her client-facing role, she would not be able to wear her headscarf at all times. Following a site visit, a customer complained that the claimant had been wearing a headscarf and requested that she did not do so in future. M SA addressed this with the claimant and when she refused to comply, M SA dismissed her.

The claimant was unsuccessful in her claim for religious discrimination before the French domestic courts, but on appeal, the matter was referred to the ECJ for a preliminary ruling.

European Court of Justice

The ECJ noted that as G4S’s internal rule subjected all employees to the ban on religious, political and philosophical symbols without distinction, it did not give rise to a claim for direct discrimination.

The ECJ went on to note that G4S’s rule could, however, give rise to a claim for indirect discrimination as the policy put Muslims at a particular disadvantage. Although making it clear that the domestic court must decide whether the employer could objectively justify its code of conduct, the ECJ recognised that the intention to project a neutral image towards clients may be a legitimate aim if the rule is consistently applied and limited to client-facing employees. The ECJ also noted that the employer in question should have considered whether it was possible to place the claimant in a role which did not involve direct contact with customers.

In the M SA case, the ECJ held that, in the absence of such a rule banning religious, political and philosophical symbols, there may be exceptional circumstances when not wearing a religious symbol or clothing is an ‘occupational requirement’, but these conditions are not met simply because an employer is willing to concede to the fact that a service user or customer prefers to deal with a worker who does not wear Hijab.

It is important to stress that the ECJ has not given employers complete freedom to ‘ban’ Hijab. Some issues highlighted by the ECJ in these joint cases include:

  • A dress code based on a desire to present religious and political ‘neutrality’ to customers or the public must ban all religious, political and philosophical symbols.
  • The policy must also be applied fairly – an employer will not be able to rely upon it as a defence if some employees are permitted to wear religious, political or philosophical symbols (e .g. Christian crosses or ichtys (fish) symbols, or a Sikh turban/kara bangle) and some are not.
  • To be considered strictly necessary and proportionate to meet its aim – consideration must be given to whether the dress code applies to all staff or only those staff who have direct contact with customers/the public (the latter may be easier to objectively justify).
  • An employer should consider whether it is possible to offer the employee a post which does not have visual contact with customers, instead of dismissing.
  • There may be exceptional circumstances when not wearing a religious symbol or clothing is an ‘occupational requirement’, but these conditions are not met simply because an employer is willing to concede to the fact that a service user or customer prefers to deal with a worker who does not wear Hijab.