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Dress code policies and religious discrimination

Employment Matters e-update – July 2021

Overview

The European Court of Justice (ECJ) has confirmed that an employer can implement a policy prohibiting employees from wearing items of clothing which could be considered to be manifesting a religious, philosophical or political belief in the workplace without being found to have acted in a discriminatory manner, provided the policy requires ‘neutral’ dress from all employees.

IX v WABE eV; MH Müller Handels GmbH v MJ

In the first of two joint cases, the ECJ considered a policy applied by WABE, a special-needs child centre, which applied a policy of political, philosophical, and religious neutrality which prohibited employees from displaying any sign of their political, philosophical or religious beliefs which would be visible to parents, children or third parties in the centre.

An employee, IX, wore an Islamic headscarf for religious reasons and continued to do so notwithstanding the policy. She was given several warnings and was suspended.

The second case also involved an employee refusing to remove an Islamic headscarf on request from her employer who also operated a policy prohibiting the wearing of anything that was ‘conspicuous’ and/or ‘large size’ signs of any political, philosophical or religious beliefs.

Both employees brought actions before German courts, which referred questions to the ECJ, asking whether the treatment in both cases constituted direct religion or belief and, in so far as it amounted to prima facie indirect discrimination, whether the treatment could be justified.

The ECJ held that it was not direct discrimination for an employer to impose a policy requiring neutral dress in the workplace, provided the policy was applied to all employees equally and in a general and unconditional way. This was the case even if the policy caused inconvenience to certain workers who observe religion-based clothing rules. It did not automatically follow that the Claimants suffered a difference in treatment that was inextricably based on their religion/belief.

Whilst this judgment does not bind the courts and tribunals in the UK, under S.6(2) of the European Union (Withdrawal) Act 2018 UK courts and tribunals may ‘have regard’ to it ‘so far as it is relevant’ to the matter before them. Employers should therefore treat this as a reminder to ensure that policies are drafted carefully and are applied consistently throughout the organisation.

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