The European Court of Justice (ECJ) has today found that general rules prohibiting employees from ‘the visible wearing of any political, philosophical or religious sign’, including headscarves, on the basis of neutrality, need not constitute direct discrimination under European employment law. It may constitute indirect discrimination, if it puts ‘persons adhering to a particular religion or belief being put at a particular disadvantage’ and that disadvantage could have been avoided, for example by moving the employee away from a customer-facing role, but no conclusion on that was reached as the issue was passed back to lower courts to determine.
The British Humanist Association (BHA) has emphasised the need for freedom of expression albeit whilst balancing it with the rights of others.
An employee in Belgium and another in France were fired for wearing headscarves at work, in contravention of their employers’ policies, which banned the wearing of visible religious clothing or symbols. Both policies were based on objectives of ‘dress neutrality’. These policies were found not to constitute direct discrimination against the employees, as it did not target them on the basis of their specific religion. But whether or not it constitutes indirect discrimination has been remitted back to the Belgian and French courts to determine.
BHA Chief Executive Andrew Copson commented: ‘The question courts must ask themselves in cases such as this one is whether the manifestation of one person’s religious identity will interfere with the rights of others. If the answer is no then the court should allow the manifestation. If the answer is yes, then there may be a case for limiting it. As we work out solutions to the new tensions of living in an increasingly diverse society, we need to take an approach that balances everyone’s rights fairly and we are pleased that the European Court of Justice has today appeared to reinforce that principle.’
What happened in these cases: the law explained
European Union employment rules prohibit both direct and indirect discrimination against employees on the basis of religion or belief. Direct discrimination refers to where an employee is discriminated against as a direct consequence of their religion or belief. Indirect discrimination is where an employee is discriminated against not due to their specific religion or belief but because more general rules put someone of their religion or belief at a disadvantage. Such discrimination can however be legal if it can be said to constitute a ‘genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.’
A rule banning specifically Muslim religious clothing may constitute direct discrimination against Muslims, but in these two cases employers’ rules more generally banned visible religious clothing in general, in pursuit of a policy of neutrality. Consequently, it was found that direct discrimination had not occurred. Similarly, a rule which banned some religious clothing due to the wishes of a customer was considered too subjective to be justified.
However, a rule banning all religious clothing on the basis of presenting neutrality towards the customer was found to potentially involve unjustified indirect discrimination. This could be the case if, for example, the employer could have reasonably moved the employee to a non-customer-facing role, because such a ban may impact Muslims more than people of other faiths. Whether or not this was the case here was remitted from the ECJ back to the Belgian and French courts to determine.
The European Court of Human Rights (ECtHR) is a separate court of equal stature which is responsible not for upholding EU law, which is the ECJ’s job, but for upholding the separate European Convention on Human Rights. In 2013 the ECtHR ruled that a British Airways employee who wished to wear a visible cross around her neck had been indirectly discriminated against, in violation of her freedom of religion, due to her employer’s ban on the wearing of religious symbols. That ruling appears to be broadly consistent with this one.
For further comment or information please contact BHA Director of Public Affairs and Policy Richy Thompson on firstname.lastname@example.org or 020 7324 3072.
Read the ECJ’s press release: http://curia.europa.eu/jcms/upload/docs/application/pdf/2017-03/cp170030en.pdf
Read more about the BHA’s campaigns around conscientious objection: https://humanism.org.uk/campaigns/human-rights-and-equality/conscientious-objection/
The British Humanist Association is the national charity working on behalf of non-religious people who seek to live ethical and fulfilling lives on the basis of reason and humanity. It promotes a secular state and equal treatment in law and policy of everyone, regardless of religion or belief.