The Advocate General (AG) has recently provided an opinion that a dress code which only allows individuals to wear small scale signs of religious belief, while banning larger scale signs, could be justified.
The German courts had referred two cases to the European Court of Justice (ECJ) to consider whether dress codes which prohibited certain forms of religious dress were indirectly discriminatory against individuals holding a philosophical or religious belief. Indirect discrimination is capable of being justified if it is a proportionate means of achieving a legitimate aim.
The two cases involved:
- A carer in a child care setting who wore an Islamic headscarf. The employer had required all employees to observe “political, philosophical and religious neutrality” to enable the children in their care to be free to develop their own beliefs. All employees were informed signs such as a Christian cross, Muslim headscarf or Jewish kippah were unable to be worn around the children.
- The second case involved a member of sales staff at a pharmacy who also wore an Islamic headscarf. The pharmacy asked all staff not to wear large-scale religious signs.
Both individuals claimed that their employer's instruction was discriminatory on the grounds of religion or belief. The German courts asked the ECJ to consider, amongst other things, whether indirect discrimination on the grounds of religion could be justified by the employers stated aim of a policy of political and religious neutrality and whether a policy could be justified which prohibited large-scale religious signs, but permitted smaller scale signs.
The AG's opinion
The AG concluded that the employers' directions not to wear headscarves were not directly discriminatory against either individual, because it was a direction given to all employees regardless of their faith. Rather than specifying that individuals of a particular religion could not wear specific manifestations of their faith, e.g. that a Muslim employee could not wear headscarves, the employer had issued general directions applying to all employees of all faiths.
Turning to the question of indirect discrimination, the AG noted that in these two cases there was a legitimate aim. In the second case, the employer's policy of political, philosophical and religious neutrality in its relations with its customers is a legitimate aim.
The AG then looked at whether the employer's stated aim of pursuing a position of religious and political neutrality could be justified. The AG said that it could be, provided that the means of achieving that aim were proportionate and necessary.
The AG also said that he considered that a rule which prohibited large-scale manifestations of faith, such a headscarf, but permitted smaller signs such as a pin badge or a cross necklace, was also capable of being justified. He referred to the case of Eweida in which the ECJ held that a British Airways employee who wished to wear a necklace with a cross on it was not incompatible with the employer's position of neutrality as it was not noticeable at first glance and was small. He considered that, while it may be justified in some cases to ban all manifestations of religion, it equally could be justified to limit such manifestations to small, discreet signs only.
What does this mean for the UK?
When the matter reaches the ECJ, the court will not be bound by the AG's opinion and so the European position may well develop further.
As the AG's opinion and any finding of the ECJ take place after the end of the transition period following Brexit, the UK courts and tribunals can have regard to the AGs opinion and the ECJ judgment, but they don't have to follow it.
That said, the AG's opinion does provide employers with some comfort that dress codes addressing political or religious signs are possible, depending on the circumstances. In particular, there must be a legitimate aim (for example adopting a position of religious neutrality in reasonable circumstances), and that the dress code must be both proportionate and necessary to achieve that aim.
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