Raphael Prais, lawyer at LHS Solicitors, analyses the European Court of Justice ruling on wearing religious symbols in the workplace, and advises UK SMEs on what they should consider when enforcing such rules.
As you may be aware, the European Court of Justice (ECJ) has given a ruling on wearing religious clothing, such as Islamic headscarves, at work.
Before explaining the ruling, I’ll say this – it remains safer to allow your workers to wear religious clothing or symbols. Banning such symbols may result in a finding of indirect discrimination. But what this ruling says is that if you do wish to project neutral corporate image, and you apply the same rule to every religious and political viewpoint, it might not be direct discrimination, and in some circumstances, it might be possible to justify the rule.
The ruling relates to two cases. Both cases concern private employers and female Muslim employees. In both cases, there were rules against the wearing of visible religious symbols in the workplace. In the first case, after a few years’ employment, the employee insisted on wearing a headscarf. She was told that wasn’t allowed, and was eventually dismissed.
In the second case, it is less clear whether there was an internal rule against wearing religious symbols – even if there was such a rule it seems it wasn’t enforced until a customer complained. So, the additional issue is whether you can enforce a rule, by dismissing if necessary, because of a complaint by a customer.
It should be added that in both Belgium and France there is a strong public feeling that the public space should be secular. Indeed, full veils have been banned in both countries. It is in that context that these two companies have banned religious symbols. In the UK, pluralism is viewed differently and it would be harder to justify such rules.
And what did the ECJ decide?
A rule banning all religious and political symbols in the workplace is not direct discrimination. It would have to be a genuine rule, however – if it was formulated in response to one employee of a certain religion, it may be found to be direct discrimination.
Banning religious symbols may be indirect discrimination if it had a disproportionate effect on a particular religion or belief. The ECJ said that only the national court could determine that question.
Indirect discrimination will not be unlawful if it can be justified in respect of a legitimate aim. That is also for national courts to determine and the ECJ only provided what it calls “guidance”. That guidance suggests that an employer’s desire to project an image of neutrality toward its customers is a legitimate aim – but it would be harder to justify the rules in roles that are not customer facing, and redeployment to such roles should be explored before more drastic action is taken.
Enforcing a rule in response to a customer request not to work with someone wearing a headscarf would be direct discrimination. Direct discrimination is harder to justify than indirect: it would have to be a genuine occupational requirement. The ECJ said that customers’ requests are not genuine occupational requirements.
The effect on UK law
Banning all such symbols was never likely to be considered direct discrimination. As Dr Vakulenko, an expert on the Islamic dress in legal discourse, says, “although it might be argued that it’s direct discrimination because it affects adherents of religions more than it affects secular employees, the courts were unlikely to interpret direct discrimination that way. On the other hand, such a ban would almost certainly result in detriment to certain groups whose religions have a stronger material component, prescribing an outward appearance as well as a direction of the heart. And as the UK traditionally prefers a pluralist approach, such a ban could be hard to justify over here.”
Whether a ban on religious symbols is justified will always depend on the circumstances. In the UK, businesses generally promote diversity and justifying a ban would be difficult.
When justifying indirect discrimination, it is always a balancing act – on the one hand, there are the needs and rights of the employer; on the other hand, you have the rights of the employee to be treated equally to others and also, under the European Convention on Human Rights, to manifest religion.
And remember – to even reach that stage, the business would have to convince the tribunal that the “policy is genuinely pursued in a consistent and systematic manner”. Even more so, enforcing the policy in response to requests from customers is very likely to lead to a finding of unlawful direct discrimination.
If, as a small business owner, you are thinking of banning all religious or political symbols in your workplace, do make sure you apply the same rule to all viewpoints, and make sure it can be justified by reference to a pre-existing policy of religious neutrality. It is certainly safer not to ban religious symbols.