ECJ: Headscarves and high heels

Introduction

The European Court of Justice has ruled that employers are entitled to ban workers from the "visible wearing of any political, philosophical or religious sign" including headscarves.

• Achbita and anor v G4S Secure Solutions NV (Case C-157/15) (a press summary is available here).
• Bougnaoui & ADDH v Micropole SA (Case C-188/15).

The Court held that: 

• An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination based on religion or belief.
• It may constitute indirect discrimination if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage. However, such indirect discrimination may be objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary.
• However, in the absence of such a rule, the willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf cannot be considered an occupational requirement that could rule out discrimination.

The impact of the decision is likely to differ across the different European jurisdictions as each have been grappling with the issue of Islamic headscarves and full-face veils and have come to different conclusions.

Unlike other EU states, the UK doesn’t have a culture of taking religion out of public life/office and we don’t think many employers would want to ban their employees from wearing headscarves. The ECJ’s ruling sits alongside a push in the UK to stop employers from being permitted to make female employees wear high heels to work (a high heel dress code being susceptible to challenge as being discriminatory on grounds of sex). It would be odd if we reached a situation where UK employers cannot tell female employees what to wear on their feet but could tell them what they can’t wear on their heads. There is more controversy in the UK, however, about full-face veils, this decision doesn’t allow employers to distinguish in this way because they have to be neutral. A trip to the European Court of Human Rights might be fruitful for the claimant in this case.

Similarly, in Germany, the current case law is very strict and the position is already more in the employee’s favour. Recently, the German Constitutional Court has become even more protective towards the freedom of religion so it is doubtful that Germany would follow this new decision of ECJ case law, which is not as strict as existing requirements to safeguard employees. Private employers usually have to bring actual evidence of having suffered financial damage or of the peace in their business being disturbed - this is difficult to prove in practice. On the basis of neutrality and secularism principles the State was more easily able to prohibit headscarves until the recent constitutional judgments in 2015 and 2016. Since then, however, even statutory provisions that prohibit religious signs at work will no longer be sufficient to justify discrimination if they do not serve the purpose of avoiding a concrete threat to State neutrality.

In France, the principle of separation of Church and State (neutrality principle) allows the employer to ask their employees not to show or wear any visible religious sign within the company. The new Loi Travail allows the employer to add such principles and dress code reminders to their internal rules. The new decision would guide the employer on the way to lead this sensitive issue. However, it seems that the neutrality principle cannot be imposed by an external client. We need to wait and see how the French High Court will apply this decision in practice.

In Spain, very recent case law considering the ban of a headscarf on an employee attending airport customers, declared this discriminatory considering that freedom of religious choice is stronger than the laicism principle.  The ban also breaches Article 16 of the Spanish Constitution, therefore, a very strict approach is taken by Spanish Courts in favour of the employee’s right to wear symbols (religious or ideological). Changes are likely to happen after these ECJ rulings.

Practical impact

It is important to remember that the ban is based on internal company rules which require employees to dress "neutrally". Employers should now take the time to re-communicate their dress code policies to staff to avoid any confusion.