Is it discriminatory to apply a neutral policy preventing employees from wearing anything that is a sign of political, philosophical, or religious belief?
No, held the European Court of Justice (ECJ) in IX v WABE eV; MH Müller Handels GmbH v MJ.
This was a case involving two German employees working for different employers but in similar circumstances and which were considered by the ECJ together.
IX was employed as a special needs worker by WABE. MJ was employed as a cashier by MH. Both WABE and MH had policies prohibiting the wearing of visible religious symbols. The employees in question wore religious symbols, in the form of a hijab (IX) and a visible cross (MJ) at work. When their employers requested that they remove them, the former refused and was ultimately suspended, and the latter refused and was sent home.
Both brought claims of direct and indirect discrimination which were referred to the ECJ by German courts.
In terms of direct discrimination, the ECJ determined that the rule adopted by the WABE and MH did not constitute direct discrimination because all workers were treated in the same way in that the policy was applied without distinction.
As to the second question of indirect discrimination, the employers argued the policy was justified by a legitimate aim – their desire for staff neutrality in interactions with customers. The ECJ agreed, saying ‘a prohibition on wearing visible forms of expression of religious beliefs in the workplace may be justified by the employer’s need to present a neutral image towards customers’.
Following Brexit, the UK is no longer bound by ECJ rulings but it is an interesting case, nonetheless. It seems Employment Tribunals in England and Wales will apply a higher bar in terms of assessing what constitutes a legitimate aim in the banning of religious symbols. Government guidance states ‘employers… shouldn’t set dress codes which prohibit religious symbols that do not interfere with an employee’s work’. This guidance seems on the face of it to be incompatible with the ruling in WABE.
The legitimate aim test was met in the UK case of Azmi v KMBC [2007]. Here, the EAT ruled that an employer, in asking a support worker employee to remove her full face veil while teaching, was seeking the legitimate aim of providing the highest standard of education and therefore the act did not amount to indirect discrimination.
The judgment can be found here.
This blog was written by Jack Dooley, paralegal for didlaw.
