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What next for employers following ECJ’s equal treatment ruling?
20/07/2021
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Hijab
Authors
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Sara Ibrahim
Sara Ibrahim is a barrister specialising in employment and discrimination law at 3 Hare Court Chambers

Last week, the European Court of Justice (ECJ) gave judgment in a conjoined appeal from Germany, where two Muslim women were asked not to wear a hijab at work. Some commentators claimed with apparent certainty, that following the ruling, wearing a headscarf could be grounds for job suspension or even sacking. So, does the ECJ’s decision give carte blanche for employers to suspend or fire those wearing a hijab or other religious symbol at work?

Both employers in the case before the ECJ had a clear policy that their employees were not to wear conspicuous signs of their political, philosophical, or religious beliefs. In one case, the employee was a children’s care worker at a daycare centre with a publicly stated commitment to religious neutrality, which they believed was undermined by noticeable religious clothing. In the second case, the employee was a sales assistant and had refused to remove her hijab when requested by her employer who said it breached their policy on “conspicuous, large-sized signs” of religious belief.

Both women argued that their employers’ guidance targeted wearing of the Islamic headscarf and was therefore direct discrimination under Article 1 and Article 2(2)(a) Directive 2000/78, more commonly referred to as the Equal Treatment Directive. They further argued that it was indirect discrimination under Article 2(2)(b) that could not be objectively justified. One of the appellants contended that the prohibition on wearing the hijab affected only women and was also gender discrimination. This reflected the findings of the UN Human Rights Council in March this year that many Muslim women face a “triple penalty” as women, ethnic minorities, and Muslims. However, the court held that this didn’t fall within the scope of the Equal Treatment Directive and, therefore, did not require examination.

Wearing of signs or clothing manifesting religious belief is covered by the right to freedom of thought, conscience, and religion under Article 10 of the European Charter (which corresponds with Article 9 of the European Convention on Human Rights (ECHR)). In the seminal case of Eweida & others v the UK [2013] ECHR 37, the European Court of Human Rights, in considering Article 9 ECHR, held that “where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate”. At first blush, the decision of the ECJ seemed not to accord adequate weight to the right of an individual to manifest their religious belief as the ECHR had in Eweida.

What the ECJ did decide was that the clothing rule applied by the employers was not direct discrimination if it was applied in a “general and undifferentiated way”. In relation to the children’s care worker, great emphasis was placed on a factual finding below that another employee had also been asked to remove their cross, a sign of Christian faith.

The crux of the ECJ’s findings rested on the employers’ desired aim to pursue a policy of neutrality. The court did make it clear that mere expression of a desire for neutrality would not be sufficient to objectively justify treatment that otherwise would be indirectly discriminatory. Any employer would need to go one step further and prove there was a genuine need for such neutrality. This could include the legitimate wishes of an employer’s customers or users. On this basis, parental desire to have a secular care environment for their children was held to be pertinent. In order to satisfy the court that any indirectly discriminatory effect can be justified, any rule about “neutrality” must be consistent and methodically applied. Crucially, any prohibition on wearing any sign of political, philosophical, or religious beliefs imposed by an employer’s rule must be limited to what is strictly necessary. This sits more comfortably with the reasoning in Eweida in the ECHR that any interference to a manifestation of a religious belief should be proportionate.

For those employers who are concerned about what this would mean in practice, they should establish if there is a genuine need for neutrality. This is more likely to occur where an employee is interacting with customers or members of the public. Where an employer is curbing an employee’s ability to manifest their religious (or even philosophical or political) beliefs, they need to consider the severity of any adverse consequences they are seeking to avoid by applying a ban. For example, if an employer is seeking to create a “neutral” retail environment for their customers, it would not be proportionate to ban religious symbols or signs when employees are not interfacing with those customers. Similarly, employers must be uniform in their application of the policy and ensure that neutrality is imposed for all signs of belief. Although the ECJ ruling looked at manifestations of religious belief, the standard of genuine neutrality would not be met if religious symbols were banned but political campaigns (say, wearing of badges on climate change or other causes) were permitted.

This case will require a careful balancing act on the part of employers. Not all employers will want to adopt a policy of neutrality as they may feel that it could have an exclusionary effect on members of their workforce. For those who do wish to take this step, they should consider what might be an overt or conspicuous sign. Small or discrete items of religious clothing are likely to be acceptable even in client-facing roles, or there could be alternative positions offered for those who wish to retain signs of their religion or beliefs. Where there are policies that deal with dress, they must be applied to all employees.

Ultimately, employers will need to establish there is a real and compelling business or operational reason for any bans or restrictions on dress or symbols that exceed mere preference. Despite the attention-grabbing headlines generated by the judgment, employers should remain aware that bans on manifestations of religious belief could have other indirectly discriminatory effects for protected characteristics such as race or sex. Any policies applied by employers should be regularly revisited and care taken to ensure any restrictions remain necessary and go no further than business needs require. Contrary to the coverage of the ECJ ruling, employers operating in Europe will have to tread very carefully to justify the indirectly discriminatory effect of uniform policies both under the European Charter and the European Convention on Human Rights.