Two cases involving employers objecting to women wearing Islamic veils at work have provided eagerly awaited judgments from the European Court of Justice this week.
Among the questions posed: could dress policies which prohibit visible signs of religion or belief be lawful? The answer is, emphatically, ‘yes’, provided all religions are treated the same.
Case 1 – Direct or Indirect Discrimination?
In Achbita and anor v G4S Secure Solutions NV (Case C-157/15), the ECJ held that an internal rule which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination on the grounds of religion or belief, provided that the rule treats all employees the same way (i.e. by requiring them to dress neutrally).
This means that an employer would have to ban all signs of religion and belief (not just those relating to particular religions).
The ECJ went on to provide guidance on the question of indirect discrimination. It suggested that, even if the rule did lead to someone of a particular religion suffering a disadvantage due to a difference in treatment indirectly based on religion, it was likely to be objectively justifiable.
The Court stated that an employer’s desire to project an image of neutrality towards its customers is legitimate.
It found that the dress code rule would be appropriate for ensuring that the policy of neutrality is properly applied, provided that the policy was genuinely pursued in a consistent and systematic manner.
It went on to state that if the prohibition covered only those workers who interact with customers, it must be considered strictly necessary for the purpose of achieving the aim pursued. Provided these criteria were met, the ECJ felt that there would be no indirect discrimination.
In addition, the ECJ made the point that the national court should also ascertain whether Ms Achbita could have been offered a post not involving any visual contact with those customers, instead of dismissing her.
Case 2 – Occupational Requirement?
On the other hand, the second case, Bougnaoui and anor v Micropole SA (Case C-188/15), concerned the willingness of an employer to take account of the wishes of a customer who did not wish to have services provided by a worker wearing an Islamic headscarf.
The question for the ECJ was whether this willingness could amount to a ‘genuine and determining occupational requirement’ (meaning the employee’s dismissal would not be discriminatory). The answer from the ECJ was a resounding ‘no’.
The court pointed out that the occupational requirement defence can only be used in limited circumstances and does not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of the customer.
What does this mean for employers?
These cases tell us that an employer is unlikely to fall foul of discrimination legislation on the grounds of religion and belief, provided that neutrality of dress rules apply consistently across all religions and beliefs and apply only to those who interact with customers.
However, employers are well-advised to remain cautious in their handling of complaints from customers about any clothing of employees which relate to their religious beliefs, particularly if they have no internal policy on the point.
The somewhat surprising outcome of the Achbita case does mean that employers wanting to maintain religious neutrality in the workplace may now have more room to manoeuvre safely, as long as they remember to ensure that no particular religion is singled out.
[Source – ECJ Press Release]