The European Court of Justice (ECJ) has ruled that companies may ban “the visible wearing of any political, philosophical or religious sign” in the workplace.

This need not constitute direct discrimination, as long as the rule is applied to all members of staff equally and does not single out particular groups. Such a ban may affect Muslim staff who wear headscarves at work – if it was only applied to that group of employees it would almost certainly constitute unlawful discrimination.

The ban must be based on internal company rules requiring all employees to “dress neutrally”, said the Court. As a result such a policy might equally affect employees who wear other religious insignia such as crucifixes, skullcaps and turbans.

In addition such a ban cannot simply be based on the wishes of a customer.

Advice to Employers

Andrew Willis, Croner’s Head of Litigation, comments: “The ruling has been met with a range of reactions, with some predicting that it will give greater leeway for employers to discriminate against staff on the ground of their religion.

“In fact, such policies will only be lawful if they do not discriminate on the ground of a particular religious or philosophical belief.

“It is also important to remember an employer’s duty not to indirectly discriminate – by placing people who adhere to a particular religion or belief at a particular disadvantage without justification.

“As an example, wearing certain forms of dress might be ruled out by safety concerns. This would be lawful provided it was objectively justified as an appropriate and necessary way of achieving a legitimate aim – and consideration would need to be given to offering any affected employee a different position. ”

Background

The ruling arose from a case involving a receptionist fired for wearing a headscarf to her workplace in Belgium.

Ms Samira Achbita was fired in June 2006 when, after three years of employment, she began wearing a headscarf to work.

At the time of Ms Achbita’s hiring, an “unwritten rule” had been in operation banning overt religious symbols, and the company subsequently went on to include this explicitly in its workplace regulations.