A recent decision by the European Court of Justice sparked numerous headlines stating employers could legally ban employees from wearing Islamic headscarves in the workplace. The ruling, however, is more complicated than it seems and employers need to tread carefully in this area to ensure they’re not breaking the law.
In Achbita v G4S Secure Solutions, the employee worked as a receptionist in Belgium. The employee was Muslim and told her employer that she was going to start wearing a headscarf to work. The employee was told that this would breach the employer’s unwritten rules on neutrality when in the presence of customers. The employer then amended their dress code to prohibit the wearing of any religious, political and philosophical symbols when staff were in contact with clients. The employee refused to go to work without wearing a headscarf and was dismissed.
The European Court of Justice (ECJ) found that the ban on wearing headscarves was not direct discrimination because the neutrality rule applied to everyone in the business without any differentiation. However, the ECJ gave guidance that such a ban could be indirect discrimination because the rule which applies to everyone equally could disproportionately disadvantage a group of people with a shared protected characteristic.
Indirect discrimination can be objectively justified by showing that their actions are a proportionate means of achieving a legitimate aim. The employers aim, in this case, was their wish to project a neutral image to customers and the court considered this was legitimate.
What does this mean for employers?
- If an employer does want to prohibit employees wearing religious symbols at work then they need to ensure any policy prohibiting this applies equally to every religion on a neutral basis. Failing to do so is likely to lead to a claim of direct discrimination.
- A policy of complete neutrality could require businesses to go further and remove all possible links to any religion where customers are present, for example, not having a Christmas tree in the reception area of the office.
- Complete neutrality will cover political and philosophical symbols too which, in some cases, may even spread to football allegiances.
- This case also highlights that employers cannot just apply such a ban without having a legitimate aim behind the ban and, even if their aim is legitimate, the means of achieving the aim will be heavily scrutinised. For example, if the employer dismisses a person because they insist on wearing a religious symbol is this a proportionate way of achieving neutrality around customers? Instead, a more proportionate move may be to move the employee to a role which isn’t customer facing.
- There are also social and cultural issues at play with this case that could lead to such a ban being heavily scrutinised and the reasonableness of the employer questioned in this country.