The European Court of Justice (ECJ) has held in IX v WABE eV; MH Müller Handels GmbH v MJ that a prohibition on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not constitute direct religion or belief discrimination under the EU Equal Treatment Framework Directive, provided that the rule is applied in a general and undifferentiated way.
It also held that the indirectly discriminatory effect of such a rule can be justified by an employer's genuine business need to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, in order to take account of their legitimate wishes.
Both the cases considered were German. IX was employed as a special needs carer in a child day care centre which applied a policy of "political, philosophical and religious neutrality". This policy meant that employees were not permitted to wear any signs of their political, philosophical or religious beliefs visible to parents, children and third parties in the workplace. IX wore an Islamic headscarf to work, was given warnings and suspended. MJ was employed as a sales assistant. She refused to comply with her employer's request to remove her Islamic headscarf and was sent home. She was instructed to attend work without "conspicuous, large-sized signs" of any political, philosophical or religious beliefs. IX and MJ both brought actions before the German courts which referred the issue of whether the treatment in both cases constituted direct religion or belief discrimination under the Framework Directive and, in so far as it amounted to indirect discrimination, whether the treatment could be justified.
In IX's case the ECJ held that a rule prohibiting workers from wearing any visible sign of political, philosophical or religious belief in the workplace does not constitute direct discrimination based on religion or belief, provided that it covers any manifestation of such beliefs without distinction. Provided the rule is applied in a general and undifferentiated way it will not establish a difference of treatment based on a criterion that is inextricably linked to religion or belief. The ECJ then considered whether the indirectly discriminatory effect of the rule could be justified by the employer's desire to pursue a policy of political, philosophical and religious neutrality to its customers or users, in order to take account of their legitimate wishes. It held that justification can only be established if the employer can demonstrate that it has a genuine need for the policy. Account can be taken of the rights and legitimate wishes of customers or users, such as parents' right to ensure the education and teaching of their children in accordance with their religious, philosophical and teaching beliefs, or their wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children. The ECJ noted two further conditions, the rule must be appropriate for the purpose of ensuring that the employer's policy of neutrality is properly applied (it must be pursued in a consistent and systematic manner), and it must be limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid.
In MJ's case the ECJ took the view that a ban limited to conspicuous, large-sized signs of political, philosophical or religious beliefs would be liable to constitute direct discrimination on the ground of religion or belief, given that it would have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign, such as a head covering. It concluded that indirect discrimination arising from such a ban can only be justified if the ban covers all visible forms of expression of political, philosophical or religious beliefs.
Take note: The ECJ's decision is not binding in the UK, though courts and tribunals may take it into account when considering dress codes and whether they constitute discrimination on grounds of religion or belief under the Equality Act 2010. As existing guidance from the Equality and Human Rights Commission states that a policy of neutrality is unlikely to amount to a legitimate aim enabling an employer to justify it, it's unlikely that the ECJ's ruling will have much impact in the UK. It does, however, mark a shift away from the prohibition against discrimination on grounds of religion or belief, giving greater power to European employers to argue that they have a genuine need to impose dress code requirements.
The ECJ's decision was discussed in our most Trowers Tuesday, 'Including the offensive' - view here.
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