The Court of Justice of the European Union (CJEU) has recently delivered a ruling on whether a dress code prohibiting employees from wearing anything manifesting a religious, philosophical or political belief in the workplace is discriminatory on the grounds of religion or belief.
The joint cases, referred from the German courts to the CJEU, were IX v WABE and MH Muller v MJ.
The first case involved a child day care centre, WABE, which had a policy prohibiting employees from displaying in a manner visible to parents, children or third parties, any signs of political, philosophical or religious beliefs. The policy was enforced against the Claimant who wore a headscarf for religious reasons.
The second case involved an employee, MJ, who was sent home for refusing to remove her Islamic head scarf. Her employer instructed her to attend her workplace without ‘conspicuous’ and/or ‘large size’ signs of any political, philosophical or religious beliefs.
The CJEU held that a policy requiring neutral dress in the workplace does not constitute direct discrimination on the grounds of religion or belief, provided that the policy is applied in a general and unconditional way, ie requiring ‘neutral’ dress from all employees. Even if the policy is capable of causing inconvenience to certain workers who observe religion-based clothing rules, it did not mean that the Claimant suffered a difference in treatment that was inextricably based on religion or belief as compared to other workers.
The CJEU also considered that the indirectly discriminatory effect of such a policy could be justified providing the policy met a genuine business need of the employer. In establishing this need, account can be taken of the rights and wishes of customers or users, such as a parent’s right to ensure the education of their children is in accordance with their religious and philosophical beliefs.
It also noted that dress policies that are limited to prohibiting only ‘conspicuous’ or ‘large-size’ manifestations of a religion or belief (such as a headscarf) are likely to result in direct discrimination on the basis of religion or belief and so be unlawful.
Employers are advised to ensure that all policies are drafted carefully and applied consistently across the workforce.
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