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

The European Court of Justice (ECJ) has ruled that 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 the landmark ruling.

 

Two employees who were dismissed for wearing Islamic headscarves were found not to have suffered 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.

One case 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.

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 management told her this would not be tolerated.

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. He said getting it wrong could still see you on the ‘wrong side’ of a discrimination case; “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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Link: http://www2.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2017/03/14/employers-can-ban-religious-clothing-and-symbols-says-ecj-but-lawyers-urge-caution.aspx

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