The UK is currently going through some turbulent times, with race and religion being at the forefront of several recent issues. Understandably, employers do not want this spilling over into the workplace, but where do they stand on banning religious dress at work? The recent judgments handed down in the European Court of Justice in the cases of IX v WABE eV and MH Muller Handels GmbH v MJ have given clear guidance that the UK would be likely to follow. Whilst neither judgment is binding in the UK courts, we could see similar cases and judgments in the future…
In IX, the Respondent applied a blanket policy of “political, philosophical and religious neutrality” which meant employees were unable to show their beliefs in these areas. IX, was a carer of Islamic belief, and as such decided to wear her headscarf to work on a number of occasions. Clearly this was in breach of WABE’s policy, and after multiple warnings, the Respondent decided to suspend her. WABE stated that children should not be influenced, and that the ban would also apply to a Christian cross and Jewish kippah alike.
The circumstances in the case of MJ were similar; in that MJ was of Islamic belief and refused to follow her employer’s instruction of removing her headscarf whilst at work. However, her employer’s policy was that employees could not wear any “conspicuous, large scale political, philosophical or religious signs” whilst at work.
Both employees claimed that their employers had acted in a discriminatory way and that the treatment could not be justified.
The ECJ held that neither employer had committed direct discrimination as it cannot occur where all religions or beliefs are dealt with in the same way under the same rule. It considered that whilst it would cause more problems for those whose beliefs required certain clothing to be worn, the policies were not discriminatory as every person may have such a religion or belief and the policies were applied in an undifferentiated way.
With regard to indirect discrimination, the ECJ stated that indirect discrimination can be justified by a legitimate aim and considered whether this justification could be met under both employers’ policies.
In the case of WABE, it decided that WABE had a clear and legitimate aim as the policy only covered employees who were interacting with customers and children, as they wanted to portray neutrality in the children’s development. The policy was therefore appropriate and necessary in order to achieve its legitimate aim.
Interestingly, when deciding whether the prohibition of “large scale religious signs”, as was the issue in MH Muller Handels GmbH, was justifiable; the ECJ took the view that a small and discrete religious symbol, such as a necklace is more likely to be allowed. However, a headscarf was deemed not to be “small-scale” and therefore would not be acceptable, and the policy of neutrality (including specifying the size of items) was carried out in a consistent manner.
What do we need to do?
Whilst neither ruling is binding under UK law (although is likely to be considered in any future cases), it is vitally important that any policies you have regarding religion, beliefs and political views, are not discriminatory in any way. This means ensuring that there is a legitimate aim to the policy – if it has been imposed just because you don’t want employees to express themselves then it is likely to be deemed unacceptable.
If you would like us to review your policies or provide any further advice on discrimination in the workplace, then please get in touch with the team on 01752 292201.