In response to two claims being heard by the European Court of Justice (ECJ), the Advocate General has given a preliminary opinion that employers can ban Muslin women from wearing Islamic headscarves at work if part of a company rule regarding religious or political neutrality. Whilst not binding, this opinion does give a strong indication as to the final ruling to be made by the European Court.

What are the facts of the cases?

The first case originating in France, involves a Muslim IT engineer who had to visit clients’ premises as part of her role. Her employer had strict rules about its staff members expressing or displaying personal beliefs when on clients’ premises. The employee wore an Islamic scarf which did not cover her whole face – a hijab – and after a demand by a client that the employee no longer wear the hijab because it ‘embarrassed’ a number of its employees, her employer told her to remove it whilst visiting clients. When she refused, she was dismissed.

The second case involves a Muslim receptionist in Belgium. She was permanently contracted out to work for a client of her employer. When she informed her employer that she intended to start wearing a hijab in the workplace, she was informed that it would not be permissible under their workplace rules of ‘neutrality’ regarding conduct of staff on client’s premises. The employer then changed its dress code and introduced a uniform which did not allow any visible representations of religious belief in the workplace. Her insistence on wearing a hijab at work ultimately lead to her dismissal.

What the ECJ is going to look at?

Both cases ask questions regarding the relationship between religious observance and an employer’s right to have a dress code for employees. The first case tests whether an instruction from a third party could constitute a “genuine and determining occupational requirement of the job”. The second considers more generally whether an employer is directly discriminating against Muslim employees by preventing them from wearing a headscarf at work.

What is the current stance on this under British law?

These latest cases follow a media storm that was created in 2010 when a Christian British Airways employee claimed religious discrimination after being told she could not wear a necklace bearing a cross on it. Her claim included hearings at Employment Tribunal, Employment Appeal Tribunal and Court of Appeal which ultimately decided that an employer could prevent an employee from wearing any items associated with their religion where it was the employee’s personal choice rather than a requirement of the religion.

However, subsequently, the European Court of Human Rights (ECHR) decided that the ban was a breach of the employee’s human right to freedom of expression. Despite her unsuccessful discrimination claim in the British Courts, the media attention lead to British Airways changing their dress code.

What did the Advocate General say?

According to opinion from the Advocate General, employers can ban employers from wearing Islamic headscarves if this is part of the company’s general rule of religious or political neutrality. She did, however, admit that the ban could be indirect discrimination.

Indirect discrimination can be justified if the aim of the ban is religious and political neutrality, provided there was no less discriminatory route available. It’s important to remember that this opinion is not binding and the ECJ ruling – the real ruling – could contain a different result.

What could it mean if the employees win?

If the ECJ rules in favour of the employees and decides that it is discrimination to ban religious clothing at work, it could mean that employers need to reassess any current policies they have in relation to dress codes both in their own workplace and in relation to visiting clients’ premises where it is a feature of their employees’ role to be present on clients’ sites. Any provision within these policies which restricts clothing related to religion may need to be reviewed in order to prevent any claim to tribunal for religious discrimination.

However, the ECJ may agree with the Advocate General’s opinion that it is not direct discrimination to ban such clothing. There would then hopefully be some discussion regarding the indirect discrimination element in order to provide clarity on the employer’s position. We await the ECJ ruling.