The European Court of Justice has returned to the issue of when an employer’s instruction to remove a headscarf is discriminatory because of religion or belief. Four years ago the Grand Chamber considered this issue following references from France and Belgium. This time round it has considered two references from Germany.
The first of these new references involved a special needs carer at a child day care centre in Hamburg. Her employer had adopted a policy of “neutrality” in 2018, which included a prohibition on their workers wearing “any signs of their political, philosophical or religious beliefs that are visible to parents, children and third parties in the workplace”. After this policy was adopted, she attended work in an Islamic headscarf and was suspended when she refused to remove it.
In the other case a shop worker, who had been wearing an Islamic headscarf for some years, was asked to attend work without “conspicuous, large-sized signs of any political, philosophical or religious beliefs”. She was sent home when she refused to remove her headscarf.
We know from the ECJ’s earlier decisions that a genuinely neutral policy prohibiting all religious symbols that is consistently applied will not amount to direct discrimination because of religion or belief. Applying that test to these two scenarios, the child care centre passed, but the shop was likely to fail, because it only focused on “conspicuous” items, which would disadvantage Muslim women more than some other religious groups
Having ruled out direct discrimination in the case of the child care centre it was necessary to consider whether the application of the policy amounted to indirect discrimination. It was clear that it put Muslim women at a particular disadvantage, so the employers needed to show that it was objectively justified – ie that the employers were pursuing a legitimate aim and the means chosen to achieve it were “appropriate and necessary”.
While this question is for the national court to decide, the ECJ gave a number of pointers which have not appeared in quite the same form in its earlier decisions on this issue:
Genuine need: Although a policy of neutrality is potentially legitimate, the employer needs to show a genuine need to pursue it. In this case the educational policy formulated by the employers, in line with guidance from the City of Hamburg, was relevant. An employer would also need to show “adverse consequences” for its business if this policy was not pursued.
Consistently applied: An employer will need to demonstrate that the policy is “genuinely pursued in a consistent and systematic manner”. In this case the employer was able to demonstrate that, at about the same time, a female worker had been told to remove a cross that she wore around her neck.
Necessary: An employer will be expected to show that other options were explored – for example moving the worker to a different role where she could continue to wear a headscarf.
Proportionate: The Courts are expected to undertake a balancing exercise in the event that the competing needs of the employee and the business, as recognised under EU law, cannot be reconciled.
It follows that, like all cases involving potential indirect discrimination, it is for the court of first instance to make an evaluation and come to a view on the justification issue. As we have seen, this will involve looking at the employer within the wider societal context in which it is operating. In the UK, where a policy of religious neutrality is not so widely observed as in other parts of Europe, this could mean that our employment tribunals reach different conclusions on similar facts to those adopted by their counterparts in EU member states.
The Equality and Human Rights Commission, in its guidance on dress codes and religious symbols, has expressed the view that it is “very unlikely that an employment tribunal in the UK would accept demonstrating neutrality as a legitimate aim capable of justifying a policy which banned all religious symbols or dress”. The guidance was, however, published before this latest ruling.
Decisions of the European Court of Justice published after the end of the Brexit transitional period are not legally binding in the UK. However they remain “persuasive”, particularly in cases like this, which in effect give further worked examples of the principles that had already been established before the UK left the EU, are which are now incorporated into our domestic law.