Ban Upheld Regarding Workers Wearing Visible Signs of Political, Philosophical or Religious Beliefs
On 15 July 2021, in the case of IX v WABE eV; MH Müller Handels GmbH v MJ, the European Court of Justice (ECJ) held that a ban on workers wearing visible signs of political, philosophical or religious beliefs in the workplace does not necessarily constitute direct or indirect religion or belief discrimination under the EU Equal Treatment Framework Directive (No.2000/78) (ETFD 2000).
Both claims originate from Germany and concerned the claimants seeking clarification from the ECJ as to whether their treatment constituted direct or indirect discrimination on the grounds of religion or belief.
In the case of IX v WABE eV, the claimant was a carer in a children’s day care centre. The day care centre applied its policy of ‘political, philosophical and religious neutrality’, which prohibited employees wearing any visible signs of their political, philosophical or religious beliefs. The claimant continuously wore an Islamic headscarf, despite the policy and receiving warnings, and was subsequently suspended.
In the case of MH Müller Handels GmbH v MJ the claimant was employed as a store sales assistant and cashier. The claimant refused to adhere to her employer’s request to remove her Islamic headscarf and was sent home and instructed to return without ‘conspicuous, large-sized signs’ of any political, philosophical or religious beliefs.
The EQA 2010 provides protection for workers against discrimination at work based on a protected characteristic which includes religion or belief. There are a number of different forms of discriminatory conduct including direct and indirect discrimination, which are the two relevant forms of discrimination for this case.
To summarise, direct discrimination happens when an individual is treated less favourably than a colleague because of a protected characteristic and indirect discrimination is when a company has a provision, criterion or practice, which has a disproportionately negative effect on particular groups of people.
Full details of what constitutes discrimination can be found here.
In the case of IX v WABE eV, the ECJ held that a rule prohibiting workers from wearing visible signs of political, philosophical or religious belief does not constitute direct discrimination provided that it treats all workers equally without focus on any particular belief. The ECJ also held that such a rule would not constitute indirect discrimination if the employer can prove the genuine need for the rule. In this case it was held that ensuring that the education and teaching of children remained neutral with no manifestation of a particular religion or belief, justified the prohibition of visible signs of belief.
Interestingly (and rightly so in my opinion) in the case of MH Müller Handels GmbH v MJ, the ECJ held that limiting the prohibition of signs of political, philosophical or religious belief to only those that are “conspicuous” or “large-sized” would constitute indirect discrimination. Such a ban would predominantly effect those of certain religions or beliefs, which require the wearing of a large-sized items such as head coverings i.e. turbans (Sikhs) and head scarfs (Muslims). A Christian on the other hand may wear a crucifix around their neck which could be concealed by clothing. As such, the ECJ held that indirect discrimination arising from the prohibition of signs of political, philosophical or religious belief can only be justified if it prohibits all visible signs of beliefs.
The reoccurring theme in both cases is that the prohibition of signs of political, philosophical or religious beliefs must be consistently applied without differentiating between such beliefs, or putting a particular group at a disadvantage. For example, allowing the wearing of a Christian cross necklace but prohibiting an Islamic head scarf or allowing only small items, would constitute indirect discrimination. As such a prohibition is not applied equally across all religions. Using this example, Islamic persons would be put at a clear disadvantage compared to Christians.
The ECJ also stated that an employer’s desire alone to appear neutral will not be sufficient as a defence. The employer’s policy should have a legitimate aim, such as remaining neutral in its signs of political, philosophical or religious beliefs due to its relations with its customers or providing neutral education.
In light of the potential discrimination, offence and inconvenience caused to workers, we advise that employers should only consider the prohibition of visible signs of political, philosophical or religious beliefs if it is completely necessary. Should such a prohibition be made, then employers should ensure that it is applied consistently and fairly amongst all beliefs so as to limit any potential discrimination against certain groups of people.
Further details of the case can be found here.
Although the UK left the European Union (EU) on 21 January 2021 and is therefore no longer bound by EU case law or directives, I believe it is likely that the UK will continue complying with EU case law and directives. This is because the UK is one of the permanent member states of the United Nations and a signatory to United Nations Convention on the Rights of Persons with Disabilities, which has been found to be consistent with ETFD 2000 and the Equality Act 2010 (EQA 2010). Furthermore section 6(2) of the European Union (Withdrawal) Act 2018 provides that UK courts and tribunals may ‘have regard’ to European Judgments despite them not being binding.
Should you require advice in relation to the above or would like to discuss any of the issues within this article please call GA’s experienced employment team on 01752 203500 or email either Kayleigh Arthurs (Kayleigh.arthurs@GAsolicitors.com) or Rob Zacal (robert.zacal@GAsolicitors.com).