The European Court of Justice (ECJ) has stated that employers may prohibit workers from wearing headscarves at work in certain circumstances.
The two cases brought before the ECJ are the first of their kind to have reached the EU’s top court and come at a time when there is fierce debate across Europe about the right of Muslim workers to wear the hijab in public sector jobs and public spaces.
Case facts
Both courts in Belgium and France referred cases to the ECJ for clarification.
In the Belgian case, there was an unwritten company rule that prohibited employees from wearing visible political, philosophical or religious signs at work. A receptionist informed her employer that she intended to wear her headscarf during working hours and was told that this was not permissible. Workplace regulations were later amended formalising the unwritten rule. The company dismissed her for persistently wearing her headscarf.
In the French case, an employee was told to remove her headscarf when visiting clients after a customer complained. She had been warned before taking the job that wearing the headscarf during working hours could be a concern for some customers. She continued to wear her headscarf and was subsequently dismissed.
Main points of the judgment
The ECJ said that an internal company rule which bans the display of religious, philosophical or ideological symbols does not amount to direct discrimination as long as the rule to dress neutrally applies to all employees. For example, this rule would also have to apply to Christians wearing crucifix necklaces, Sikhs wearing turbans, etc.
An internal rule of this kind may constitute indirect discrimination. This means that although the company’s policy applies to everyone, it has the effect of putting a particular group of people at a disadvantage. This difference in treatment may only be justified if there is a legitimate aim and the means to achieving this aim is proportionate.
The ECJ stated that an employer’s wish to have an image of neutrality towards customers can be considered a legitimate aim, especially when this rule applies to individuals who are in direct contact with clients. However, the means to achieve this aim must be appropriate and necessary.
If the company does not have a rule or policy barring religious signs or symbols at work, they cannot insist workers remove their headscarf simply to fulfil the demands or appease the whims of a client.
The ECJ left it to national courts to make the final decisions.
Comment
This judgment does not give free rein to employers to do as they wish. Whatever rules employers impose in their dress code must be reasonable and non-discriminatory.
The Equality Act 2010 prevents employers from discriminating over dress code in some circumstances. These include age, disability, gender reassignment, religion or belief, sex, or sexual orientation.
If you would like to discuss any of the points raised in these cases or if you require legal advice on your organisation’s dress code, call your Employment Law Advisers for specific support.
