The recent rulings of the Court of Justice of the European Union (CJEU) around religious symbols have attracted a lot of attention, some of it confused. Most noticeably the attention has entirely focused on the Muslim headscarf when in fact the rulings apply equally to all religious symbols – whether Jewish, Sikh, Buddhist, Christian or Hindu.
The CJEU was asked to determine whether two cases involving the dismissal of women for each refusing to remove their headscarf at work which covered the head and neck, but not the face, amounted to religious discrimination.
In the Belgian case of Achbita and Anor v G4S Secure Solutions, Ms Achbita, a Muslim who worked as a receptionist at G4S, was dismissed because of her continuing insistence on wearing the Islamic headscarf at work. This was despite G4S’s internal rule of ‘neutrality’ that prohibits all employees from wearing visible signs of political, philosophical or religious beliefs in the workplace.
As G4S’s policy prohibited wearing all visible religious signs without distinction, the CJEU found that it did not intend to treat one religion less favourably than another and held that an employer’s internal rule which prohibits the wearing of any visible political, philosophical or religious belief, does not constitute direct discrimination.
In the separate French case of Bougnaoui and anor v Micropole Univers, Ms Bougnaoui, a design engineer, was dismissed from an IT consultancy firm following a complaint from a customer who claimed his staff had been “embarrassed” by her headscarf while she was on their premises giving advice.
The CJEU held that if there is no general policy of “neutrality” and the employer relies on a customer request that employees do not wear a headscarf as a reason to dismiss that employee, such treatment is discriminatory and cannot be defended on the basis of a ‘genuine and determining occupational requirement’ under Article 4 of the EU Equal Treatment Framework Directive (No.2000/78).
There was a different outcome in these cases because in Bougnaoui, the employer was simply reacting to a customer’s objections to the headscarf; there was no evidence that it had a policy of neutral dress which affected employees of all religions and beliefs (as there was in Achbita). The CJEU noted that if the employer in Bougnaoui did in fact have such a policy, that case would be decided in the same way as Achbita.
Despite the sensationalist headlines that inevitably followed, the CJEU’s judgements in both cases do not constitute a ‘workplace headscarf ban’; instead, they permit the potential for employers to establish such a sanction as part of a policy banning all visible religious signs without distinction – but subject to clear limits.
An employer must demonstrate that the rules achieve a legitimate aim in a proportionate way, which might prove difficult to comply with in practice and should not in any way be seen as an invitation to ban religion in the workplace.
Employers must also bear in mind the case of Eweida – in which BA refused to allow an employee to wear a visible cross. The European Court of Human Rights indicated that BA’s desire to project a certain corporate image was a legitimate aim; but nonetheless found that its ban was disproportionate.
Regardless of the rulings, businesses of all sizes should prioritise talent and skills above anything else; by enforcing a “neutral” dress code for all, a firm will automatically restrict the talent it attracts.
As Featured In: Solicitors Journal
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