Workplace bans on religious symbols
Posted: 16th March 2017
It has been widely reported that the Court of Justice of the European Union (CJEU), in determining a question raised by the Belgian Court of Cassation, has ruled that an employer has the right to ban staff from wearing an Islamic headscarf. However, the ruling only applies in specific circumstances.
The employer, a private company that provides services to customers in the public and private sectors, wished to adopt a position of neutrality in its dealings with its clients and, to that end, had established an internal rule prohibiting the visible wearing of any political, philosophical or religious symbol in the workplace. The finding of the CJEU was that the policy did not constitute direct discrimination on the ground of religion or belief, within the meaning of the EU directive which establishes a general framework for equal treatment in employment and occupation, provided the policy was applied equally to all employees (Achbita v G4S Solutions).
However, the CJEU went on to say that whilst an internal rule that applies to all employees in the same way does not introduce a difference of treatment based on religion or belief, the national court might conclude that such a rule nevertheless indirectly discriminates against persons of a particular religious belief if it puts them at a particular disadvantage – unless the difference in treatment can be justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. Giving guidance on this aspect of its judgment, the CJEU was of the view that an employer's wish to present an image of neutrality was a legitimate aim where it applied only to employees in a customer-facing role.
In a second case on this topic (Bougnaoui v Micropole SA) the CJEU ruled that the willingness of an employer to adhere to a customer's wish not to have its services provided by a worker wearing a Muslim headscarf does not constitute a 'genuine and determining occupational requirement' that could rule out discrimination.