March 23rd, 2017 / Insight posted in Blog

Religious Discrimination – ECJ rules on employer’s headscarf ban

The European Court of Justice recently held that it was not direct discrimination for an employer to (a) prohibit an employee from wearing a headscarf in the workplace and (b) dismiss her for refusing to obey that prohibition.

The policy under consideration in this case was a workplace prohibition on religious symbols that all employees were “prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them”.

The ECJ was not considering a targeted ban on the Islamic headscarf, which would have been direct discrimination. Instead, it was considering the application of a neutrally worded ban on all religious symbols to someone who wanted to wear a headscarf at work.

The ECJ also found that even a neutrally worded policy might discriminate against Muslims indirectly if it places them at a particular disadvantage compared to people of other religions. However, the ECJ also said that a desire to project an image of neutrality was a legitimate aim if it applied only to customer-facing employees.

Employers can take away three key lessons from this case.

Firstly, employers are entitled to have a policy banning religious symbols if the policy is geared towards all religions and not targeted to any particular religion. This will require careful drafting. Any objections must be dealt with fairly and reasonably to prevent employees becoming disaffected or feeling marginalised.

Secondly, even a neutrally worded policy could lead to a finding of indirect discrimination if you are unable to provide justification to convince a court that your policy is a proportionate means of achieving a legitimate aim, so be clear on what your aims are before you implement one. You may wish to take legal advice on whether your justification is likely to be accepted by a court.

Finally, think about the potential penalties for non-compliance with any implemented rules and consider carefully whether sanctions less than dismissal, such as redeployment to another role might be more appropriate.

If you need any advice on implementing policies regarding religious symbols, clothing or prayer, please contact Kingston Smith HR Consultancy and one of our consultants will be pleased to advise you.