Religious dress ban not unlawful

In a decision striking for its robust approach to a sensitive subject, the European Court of Justice has levelled the playing field, in respect of religious dress in the workplace.

In IX v Wabe eV, the ECJ considered the German day centre and kindergarten’s approach, to a general ban on workers wearing any visible sign of political, philosophical or religious belief in the workplace. It has held that a general ban does not amount to direct discrimination, provided this is applied in a neutral and undifferentiated way.

The ECJ has also held that an employer can justify any indirectly discriminatory effect, if it can demonstrate the requirement for neutrality, and that this is the genuine wish of service users.

Wabe eV applied a policy, that its employees were not allowed to wear any sign or symbol of their political, philosophical or religious beliefs, visible to parents. IX wore a headscarf (a symbol of her Islamic faith) to work on a number of occasions. The employer issued warnings and eventually suspended IX.

The ECJ held that because everyone may hold some form of belief, or adhere to the precepts of a particular religion, applying a general ban does not discriminate, because it treats all workers alike. This is the case even if it inconveniences workers who observe practices, requiring certain clothing to be worn. This would be particularly important say, in a non-denominational school setting, where parents have legitimately requested that the education and teaching of their children remains neutral.

This decision should not be taken as a general licence to treat those who manifest strongly held beliefs, differently to other staff. An employer would certainly open itself up to censure if it was to do so. An employer’s decision would only be justified if applied across the board, and in furtherance of genuinely held wishes of its customers.

European decisions are not directly effective in respect of private enterprises. Also bear in mind that whilst the European Union (Withdrawal) Act 2018 means that the decision isn’t binding in the UK, courts may have regard to it, where relevant.

To speak to us about your employment issues, whether to do with strategic business decisions or a particular issue involving an employee, get in touch with Meredith Hurst or another member of our Employment Law team on 03702 188 990.