On 14 March 2017, the Court of Justice of the European Union (CJEU) issued its decisions on twocases brought against employers which sought to ban the wearing of headscarves by femaleemployees in customer facing roles. The judgments provide guidance for employers on the limited circumstances in which such a ban may be lawful.
- In one of the cases before the CJEU, they found that a company’s dress code banningemployees from wearing any visible religious, political or philosophical symbols in theworkplace, which was used to prevent a Muslim employee from wearing an Islamic headscarf, did not amount to direct discrimination.
- Such general ban could however amount to indirect discrimination and would need to beobjectively justified. Maintaining neutrality in the eyes of customers was a legitimate aim, but the employer would also need to show that they implemented the policy in aproportionate way.
- In a separate case, published the same day, the CJEU found that a ban on wearing aheadscarf constituted direct discrimination because it was imposed in response to acustomer's objection rather than being based on an employer's policy of neutrality.
- Whilst there is arguably little distinction between these two case, we can summarise thefollowing:
o A ban on religious dress is permissible in law, providing it applies equally to all religions and the rule is otherwise appropriate and proportionate.
o Acceding to customer demands to remove staff that wear a particular type ofreligious dress exposes you to claims for direct discrimination. Where clients have the contractual right to remove your staff from a contract, you should check theterms of the relevant commercial agreement, as it may afford you someprotection – and take specific advice where necessary.
The G4S Case
The employee was a receptionist placed at customer offices by G4S. After a period ofemployment, she told G4S that she intended to wear a headscarf during working hours. She wastold that she could not because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers. She was eventually dismissed for refusing to comply.
In this case, the rule imposed by G4S was intended to be a neutral ban imposed by G4S whichprohibited the visible wearing of any political, philosophical or religious sign. The CJEU held that this was not directly discriminatory because it treated all employees equally and required them, generally and without any differentiation by way of religion or belief, to dress neutrally.
The CJEU considered whether such a rule might be indirectly discriminatory, if it placed a person adhering to a particular religion or belief at a disadvantage. However, it held that it would bepossible to justify that indirect discrimination by reference to a legitimate aim - such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary.
The Micropole case
The employee was a design engineer employed by Micropole. She wore an Islamic headscarf atwork and had been assigned to a customer who complained about this. As a consequence, Micropole asked her not to wear the headscarf at work. She refused, and was subsequentlydismissed.
By contrast to the G4S case, it was unclear if the requirement not to wear the headscarf wasbased on a neutral internal rule. The CJEU confirmed that, in the absence of a neutral internalrule, the dismissal was directly discriminatory. The employer argued that the requirement for theemployee to wear an Islamic headscarf was an occupational requirement, but the CJEU rejectedthis suggestion.
Cases C-157/15 Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4SSecure Solutions, and C-188/15 Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers