Employers can ban religious clothing and symbols, says ECJ – but lawyers urge caution

14 Mar 2017 By Marianne Calnan

Defeat for employees over right to wear Islamic headscarves; businesses must have ‘neutral’ dress code

Employers are within their rights to ban political, philosophical or religious clothing or symbols in the workplace as long as it forms part of a dress code that requires staff to dress ‘neutrally’, according to a landmark European ruling.

The European Court of Justice (ECJ) has found that two employees who were dismissed for wearing Islamic headscarves did not suffer discrimination, ending a long-running case that has implications for an array of religious clothing and symbols.

As the highest court in the EU, the ECJ’s ruling is not subject to appeal, but the surprise timing and nature of the decision has left experts scrambling to interpret the implications. Past cases, including that of cross-wearing British Airways worker Nadia Eweida, had been broadly taken to mean employers were not able to ban religious symbols or attire simply on corporate grounds, as opposed to health and safety requirements. Eweida won a case at the European Court of Human Rights in which it was ruled that being banned from wearing a cross impinged her right to freedom of religious expression.

This was the ECJ’s first decision on the issue, and was delivered on two separate cases. One involved a woman in France, who worked for consulting and engineering company Micropole, and the other a female worker for security firm G4S, based in Belgium. Both were dismissed for refusing to remove their religious headscarves.

The ECJ ruled that asking employees to remove such items does not constitute direct discrimination, as long as a general ban on such symbols is imposed. The judgment made it clear that if the ban was only applied to Muslim members of staff, for instance, it could still constitute direct discrimination.

Crucially, the ban must also be based on internal rules requiring all employees to “dress neutrally”, and cannot be based on the wishes of a customer, the ECJ said.

In a statement, the court added: “An internal rule of an undertaking that prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination.”

G4S had an ‘unwritten rule’ that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. The woman who brought the case, Ms Achbita, informed the company that she intended to wear an Islamic headscarf during working hours and, in response, management told her this would not be tolerated.

In Ms Bougnaoui’s case against Micropole, the ECJ court’s adviser ruled last year that she had suffered discrimination because she had been “professionally competent” and was sacked solely owing to the fact that she had refused to remove a headscarf.

The two rulings had appeared to be in direct conflict with each other, but the ECJ has now decided that neither case constituted discrimination.

Phil Pepper, employment law partner at Shakespeare Martineau, said employers should be extremely wary of adopting a blanket ban on political, philosophical or religious symbols in the wake of the case. “Any organisation that wants to adopt such a policy must give serious thought to how it would be implemented and received by employees.”

He said getting it wrong could still see you on the ‘wrong side’ of a discrimination case. “It is likely that we may see a trend towards some leniency on dress policies in future, following this ruling,” he said. “But implementing dress neutrality policies is extremely difficult and, in most cases, not realistic in the modern workplace.”

Andrea Finn, employment partner at Simmons & Simmons, said: “Numerous EU jurisdictions have been grappling with the issue of Islamic headscarves and full-face veils. The ECJ’s judgment is interesting as it allows employers to put in place ‘blanket bans’ on all religious symbols – which include crosses and headscarves. It doesn’t allow employers to do this in response to customer prejudice and would need to be neutral.  

“Unlike other EU states, the UK doesn’t have a culture of taking religion out of public life or office and we don’t think many employers would want to ban their employees from wearing headscarves. There is more controversy in the UK, however, about full-face veils – this decision doesn’t allow employers to distinguish in this way because they have to be neutral."

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