Not That Old Chestnut…..

By , Senior Associate, Employment.

You may be excused for thinking that you are reading a historic article on religious Dress Code in the workplace and believing that surely this matter had already been put to bed.

Well, not so in Europe where the European Court of Justice (ECJ) has just decided two landmark cases, from France and Belgium, on this very point.

The ECJ has held that employers are only able to ban their employees from wearing headscarves if their aim is to project an image of neutrality towards customers and they have a wider policy in place (which is genuinely pursued in a consistent and systematic manner) preventing all client facing workers from the visible wearing of any political, philosophical or religious signs. That would include preventing the wearing of kippahs, turbans, visible crosses and any other religious, philosophical or political dress or icon as well as the wearing of headscarves.

This ECJ judgment, however, doesn’t necessarily sit comfortably with the Eweida v British Airways (2013) case, where it was held that any such policy may interfere with the employees’ Right to Religion (Article 9 of the European Convention on Human Rights (ECHR)). In that case, the ECHR found in favour of Ms Eweida, stating that her right to manifest her religious belief had been infringed when British Airways relied on their neutral company image to require her to stop wearing a cross pendant.

This latest ECJ ruling is far from a green light for employers to prevent the wearing of headscarves in the workplace. Any employers considering the adoption of a neutral corporate image policy will have to consider the risks carefully.

For example, such an action would be discriminatory if the policy was in response to requests from clients or customers. To avoid liability, the employer would need to be able to objectively justify the potential adverse effect that such a policy might have on their employees (who visibly practice their faith, political or philosophical beliefs) and show consistency in their application of the policy, otherwise they are likely to be faced with a discrimination claim.

After Brexit, the past judgments of the ECJ will still be relevant when interpreting our law which is originally based on EC law. The Government has recently confirmed this in their White Paper on the so-called Great Repeal Bill.

Please contact a member of the team if you wish to discuss any of the issues raised in our bulletins.

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