Case law: Employers welcome clarification of power to restrict religious symbols at work
Employers planning to restrict wearing of religious symbols at work should ensure the restrictions do not put those with religious beliefs at a substantial disadvantage compared to others or, if they do, that they can be justified, following a recent legal ruling.
This update was published in Legal Alert - July 2016
Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.
An employer added a provision to its employee code of conduct on 13 June 2006 that 'employees are 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'. This prohibition formalised an unwritten company rule that had applied previously.
On 12 June 2006, a female Muslim employee was dismissed because of her intention to wear an Islamic headscarf to work. She had worked as a receptionist for her employer for around three years without wearing a headscarf and had only recently insisted that she wanted to wear one to work. She claimed wrongful dismissal on the basis that dismissal was direct discrimination on grounds of her religion.
It is direct discrimination if an employer treats an employee with a protected characteristic - such as a particular religious belief - less favourably because of something arising in consequence of the employee's belief, and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The Employment Tribunal dismissed her claim. She appealed but her appeal was put on hold while the Tribunal asked the European Court of Justice (ECJ) whether the relevant EU Directive on equal treatment in employment 'should … be interpreted as meaning that the prohibition on wearing … a headscarf at the workplace does not constitute direct discrimination where the employer's rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace'.
The ECJ ruled that stopping a female Islamic employee from wearing an Islamic headscarf at work was not direct religious discrimination provided the ban was because of a general company rule prohibiting visible political, philosophical and religious symbols in the workplace, not because of stereotypes or prejudice against one or more particular religions or against religious beliefs in general.
However, it said such a ban might constitute indirect religious discrimination. Indirect discrimination takes place if an employer operates a provision, criterion or practice ('PCP') which puts people with a protected characteristic such as their religious belief (including the employee who is complaining about it) at a substantial disadvantage compared with people who do not share that belief.
However, a PCP will not be unlawful if it is a proportionate means of achieving a legitimate aim. The ECJ said a PCP might satisfy this test if it was to implement a policy of religious and ideological neutrality, and was proportionate. Proportionality would depend on matters such as:
- how large and conspicuous the religious symbol was (eg a headscarf would be more conspicuous than an earring)
- the nature of the employee's job (eg are they in a prominent role or a position of authority)
- the context in which it is carried out (eg whether they are customer-facing), and
- the 'national identity' of the relevant EU member state
- Employers planning to restrict wearing of religious symbols at work should ensure the restrictions do not put those with religious beliefs at a substantial disadvantage compared to others or, if they do, that they can be justified
Case ref: Samira Achbita & Anor v G4S Secure Solutions NV  EUECJ C-157/15
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