Professor Steve Peers

The European Court of Justice (ECJ) recently issued rulings on whether employers can prohibit employees from wearing headscarves at work. These rulings have garnered significant attention, although some of it stems from misunderstandings. This post aims to provide a clear explanation of the rulings.

Background

The EU has established laws against discrimination based on sex, nationality, race, disability, age, sexual orientation, and religion. While the ECJ has frequently addressed cases related to the first three grounds, the recent judgments in G4S v Achbita and Bougnaoui mark the first instance where the court has been asked to interpret workplace discrimination based on religious grounds.

It’s important to note that EU law generally does not govern other aspects of religion, except in matters of asylum for individuals facing religious persecution. Consequently, these rulings are not applicable to regulating religion in contexts such as education.

Furthermore, the European Convention on Human Rights (ECHR) safeguards religious freedom. The European Court of Human Rights, a separate entity, has previously determined that employers must, in certain cases, accommodate employees who choose to wear religious symbols.

The rulings

The G4S ruling holds particular significance as it presents the ECJ’s most comprehensive reasoning. The court determined that clothing worn for religious reasons is a manifestation of religious belief. Subsequently, it concluded that there was no direct discrimination against Ms. Achbita, who was prohibited from wearing a headscarf while interacting with customers, as her employer enforced a general policy against displaying religious or political beliefs for all employees.

The ECJ then examined whether indirect discrimination occurred, meaning discrimination that, while not explicitly based on religion, disproportionately impacts individuals of a specific faith. Such discrimination can be justified if it serves a legitimate objective and employs appropriate and necessary means to achieve that objective. In the court’s assessment, the national court’s referral should consider that an employer’s neutrality policy concerning customers is legitimate and falls under the scope of their freedom to conduct business.

However, such a policy must be implemented systematically and consistently across different beliefs. Additionally, it should be determined whether the policy applies exclusively to employees who directly engage with customers and if it would be feasible to reassign the employee to a role without customer-facing responsibilities without imposing undue hardship on the employer.

In the second case, the court determined that employers could not justify discrimination based on a customer’s request that employees refrain from wearing headscarves. This did not constitute a “genuine and determining occupational requirement” that could legitimize reserving a position for individuals who do not wear headscarves.

Summary

The ECJ’s rulings are binding on the national courts that requested them, as well as on the courts of all 28 EU member states. These rulings suggest that employers may prohibit employees from wearing headscarves, but only under specific circumstances.

Firstly, the rulings pertain only to employees who interact with customers, provided the employer has a neutrality policy. The ECJ was not asked to rule on other employee groups, but its judgments imply that justifying bans in such cases would be more challenging, if not impossible. Moreover, the court did not provide further clarification on the precise definition of a “customer-facing” employee.

A neutrality policy mandates that an employer must prohibit all religious and political symbols worn by employees who interact with customers. This encompasses items such as kippas, crucifixes, turbans, and even symbols associated with atheism. This could create tension with existing human rights case law, which recognizes the right to wear certain religious symbols as an aspect of religious freedom.

There is a fine line between prohibiting employee headscarves solely based on customer requests and permitting employers to ban such attire based on anticipated customer reactions. This distinction may prove challenging to navigate in practice.

Essentially, the recent judgments do not constitute a “workplace headscarf ban.” Instead, they grant employers the authority to implement such a ban under specific conditions that may be difficult to satisfy in practice.

Barnard & Peers: chapter 9, chapter 20

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