A recent ruling by the European Court of Justice (ECJ) held that an employer can have a neutral dress policy preventing workers from wearing any political, philosophical or religious signs.
In Achbita v G4S Secure Solutions, the employer had a neutral dress policy in place. This meant that employees were not able to wear anything that had any political, religious or similar signs in any of their customer-facing roles. A Muslim employee working in a client-facing role was warned that she could not wear her headscarf whilst carrying out her role, she continued to do so despite the warnings, as a result the employee was dismissed.
The European Court of Justice (ECJ) considered whether the employer’s neutral dress policy amounted to direct discrimination on the grounds of religion. It was decided that as the policy prohibited all religious signs it did not treat one religion less favourably as against another and so the ECJ said this did not amount to direct discrimination.
The policy did, however, result in a difference in treatment which the ECJ held was indirectly discriminatory based on religion. This is because Muslims are placed at a particular disadvantage compared to other religions that do not wear religious dress.
A genuine need
In the case of IX v WABE, the ECJ ruled that such a ban can only be justified if the employer can provide a genuine need for the policy (a simple desire for neutrality is not sufficient), in line with the Framework Directive. For example, IX worked with children and their parents in an educational setting, so it is reasonable that parents may wish to have their children supervised by people who don’t openly display an affiliation with any particular religion or belief. A policy like this must also be applied ‘in a general and undifferentiated way’ to all manifestations of such beliefs, rather than prejudicing a particular group unnecessarily.
The implications for European and UK employers
The ECJ stated that the ruling allows courts in the EU’s 27 member states ‘a margin of discretion’ to decide whether a ban on religious symbols is justified, based on the laws they have in place to govern such matters. For example, wearing a headscarf was outlawed in French educational settings in 2004, while a ban on full-face coverings outside the home (such as a burqa or niqab) followed in 2011.
Due to Brexit, however, the judgment has no binding impact on British courts and tribunals. Even so, under Section 6(1) of the European Union (Withdrawal) Act 2018, the UK justice system may ‘have regard’ to decisions made by the ECJ ‘so far as it is relevant to any matter before the court or tribunal’.