Employers who ban all visible religious signs in the workplace are not directly discriminating against employees on grounds of religion, but risk indirectly discriminating against them unless the circumstances justify the ban, according to the European Court.
A Belgian employer operated an unwritten rule that workers were not allowed to wear visible signs of their political, philosophical or religious beliefs at work – a policy of political, philosophical and religious ‘neutrality’ in relations with its customers. A Muslim receptionist was dismissed after insisting on wearing an Islamic headscarf to work. She claimed direct discrimination on the grounds of her religion in the Belgian courts.
The Belgian court referred the question of whether the policy could amount to religious discrimination under EU laws to the Advocate General (AG) of the Court of Justice of the European Union (CJEU) for a preliminary opinion. The opinion of an AG is not binding on the CJEU, but is usually followed.
The AG’s view was that since the employer’s policy prohibited wearing of religious signs of any/every religion, no religion was treated less favourably than any other. It treated all workers in the same way ‘by requiring them, in a general and undifferentiated way … to dress neutrally’, so there was no direct religious discrimination.
By inference, if such a policy fails to treat all religions in the same way (for example, it bans headscarves but not other religious symbols), the ban can amount to direct discrimination, even if the ban is because a customer has objected to headscarves. This was confirmed in a separate ruling on the same day.
However, the AG went on to say that “it is not inconceivable” that the Belgian courts might find that the policy introduced a difference of treatment that was indirectly based on religion or belief. The policy could amount to indirect religious discrimination if it placed Muslims (for whom some visible signs of their religion, such as a headscarf, may have greater significance than in other religions) at a particular disadvantage.
Indirect discrimination is lawful if it can be justified as a proportionate and necessary means of achieving a legitimate aim. The AG said that the question of whether trying to demonstrate political, philosophical and religious neutrality in relations with customers was a legitimate aim, and whether the means of achieving that aim were proportionate and necessary, was an issue for the national court to decide.
However, the AG gave her opinion that a policy designed to demonstrate political, philosophical and religious neutrality in relations with both public and private sector customers must, in principle, be a legitimate aim.
As to whether the policy was a proportionate and necessary means of achieving that aim, she took the view that it could be, provided:
It applied only to employees dealing face-to-face with customers, and
The policy was applied in a consistent and systematic manner
As to this first requirement, the AG specifically raised the issue (for the Belgian court to consider) of whether it would have been more proportionate for the employee to have been redeployed to a non-customer facing role, where she could have worn her headscarf, rather than dismissed.
Other issues which the Belgian court might consider include how big the headscarf was, whether it was in fact a visible sign of a religion, the nature of the business, and whether there were other, non/less discriminatory ways the employer could have dealt with the issue.
It should be noted that the AG was not asked to give her opinion on whether the employer may have breached the employee’s right to manifest their religious beliefs under the European Convention on Human Rights, which should also be considered.
Employers wanting to ban visible religious, political or philosophical signs in the workplace are not directly discriminating against employees on grounds of religion, and may be able to argue they have not indirectly discriminated against them in certain circumstances
Case ref: Achbita v G4S Secure Solutions C-157/15
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Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.