The European Court of Justice ("ECJ") recently determined that a company policy banning employees from wearing religious signs such as Islamic headscarves is not necessarily discriminatory. We examine the key principles arising from two recent decisions and their potential importance for employers.
In the two joint cases of Case C‑157/15 and Case C-188/15, the ECJ examined whether the dismissal of two Muslim employees for wearing headscarves to work was unfair. The ECJ confirmed that a generally-applied company rule prohibiting the visible wearing of signs of political, philosophical or religious belief is not directly discriminatory. However, it determined that the rule may be indirectly discriminatory, unless certain tests are met.
The Equal Treatment Directive 2000/78/EC provides for equal treatment between employees on grounds of disability, sexual orientation, religion or belief and age in the workplace. It was incorporated in Ireland in the Employment Equality Acts.
Case C‑157/15 - G4S Secure Solutions
Ms Achbita was employed as a receptionist in G4s, a private company which provided reception services in both the public and private sector. In advance of her commencement with the company, Ms Achbita had been made aware of their unwritten company policy which prohibited the wearing of visible signs of political, philosophical or religious beliefs in the workplace.
Ms Achbita informed her employer that she was going to start wearing an Islamic headscarf to work. This was refused by her employer due to its position on neutrality adopted in its contracts with customers. After a brief period of sick leave, Ms Achbita wore her headscarf upon her return to work, was asked to remove it and refused. Ms Achbita was subsequently dismissed.
The ECJ determined that applying the same internal policies unilaterally to all employees did not amount to direct discrimination.
However, indirect discrimination may arise when an employer treats all employees the same, but where it puts some employees at a particular disadvantage. Such indirect discrimination may be permissible provided it is justified by a legitimate aim, the means of which are appropriate and necessary. The ECJ agreed that the company rule may be indirectly discriminatory and it was for the national courts to determine if it was lawful.
But the ECJ was willing to set out some guidance for Member States to determine if indirect discrimination arose or, alternatively, whether...