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Banning headscarves – a workable policy? (1)

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Belgium, United Kingdom

The European Court of Justice (ECJ) has ruled this week that companies can ban employees from wearing the Islamic headscarf or 'hijab', but only as part of a general policy prohibiting the visible wearing of any political, philosophical or religious sign.  

The wearing of a 'hijab' has become a much politicised issue in recent months, particularly in Continental Europe.  It is perhaps unsurprising that the reaction to this ruling has therefore been mixed.  The ruling has been welcomed by politicians in France and Belgium (where the cases originated) as providing much needed clarity on the law: Francois Fillon, the French presidential candidate, went so far as to say that the ruling was "an immense relief, not just for thousands of companies but also for their workers".  But the ruling has also been met with dismay by religious groups, including Muslim groups, who see it as a thinly veiled measure targeting Muslim women.

So, where does this leave employers?  The ruling sits awkwardly with earlier rulings from the European Court of Human Rights.  It may also seem counterintuitive for many employers who wish to encourage a diverse and inclusive workplace culture.  But this ruling has been long awaited by some employers and if employers are minded to ban the wearing of the 'hijab' in the workplace, it is important to understand the detail – the ruling is more nuanced than the headlines suggest.

What were the cases about

The ruling concerned two cases – the first referred by the Belgium courts and the second by the French courts.  Both concerned women who were dismissed by their employers for wearing the hijab.  The Belgium case concerned a woman working as a receptionist for G4S, which has a general ban on wearing religious or political symbols, while the French case concerned an IT consultant who was told to remove her hijab after a client complained.

In the Belgium case, the ECJ held that the employer's general ban was not directly discriminatory against Muslim women, as it treated all employees the same.  However, the ECJ acknowledged that the ban was, potentially, indirectly discriminatory.  But importantly, the ECJ went on to suggest that such treatment could be justified.  In order to justify indirect discrimination, an employer must show that the ban fulfils a 'legitimate aim' and that the ban is a proportionate means of achieving that aim.  In this case, the ECJ held that an employer's wish to project an "image of neutrality" to customers was a legitimate aim and, if the ban was consistently and systematic applied to all religious groups, that was a proportionate means to achieve that aim.

In the French case there was no general ban on wearing religious symbols.   The ECJ therefore had to consider whether the decision of the employer to dismiss the IT consultant following a client complaint was justified on the grounds of it being a genuine occupational requirement.  The ECJ held that it was not and therefore her dismissal was, potentially, unlawful. 

The implications for global companies

Taken together the two cases make it clear that if employers wish to justify the banning of hijabs at work, then it can only do so as part of a general policy prohibiting the visible wearing of any political, philosophical or religious sign.   But this is where the ruling becomes problematic.

  • First, in order to justify such treatment, it must be a general ban.  So, if an employer wishes to ban hijabs, then the same rule must apply to banning Jewish men from wearing kippas, or Sikh men from wearing turbans or Christians from wearing crosses.  At its most extreme, it could also mean banning people from wearing wedding rings – although, arguably, this is no longer a manifestation of any particular religious belief.
  • Secondly, the ECJ held that it was only a 'legitimate aim' in customer facing roles.  The ruling suggests that it would not be a legitimate aim in relation to roles which did not involve any visual contact with customers.  The ECJ also ruled that the employer in the Belgium case should have made an effort - without incurring costs - to find the employee another (non-customer facing) job internally.
  • Thirdly, the ECJ made it clear in its ruling that it is for national courts to decide whether a general ban is justified and the national courts in different Member States may take very different approaches to this issue.  In the UK, for example, the employment tribunals are likely to take a more 'plural' approach than in perhaps more secular societies, and a general ban is likely to be more difficult to justify. 
  • And finally, the ruling is premised on this being a supposedly 'neutral' policy.  Some politicians in Continental Europe have heralded this ruling as a victory of European values.  But those values are secular ones and there any many religious groups (and potentially customers) who may not see this as a 'neutral' decision.  If you are rolling out a global policy, then it is important to understand these cultural differences and sensitivities.  While the ban may be justifiable legally in Europe, it may not be seen as culturally justifiable by employees or customers in certain countries – particularly in countries which take a more 'plural' approach.

The future

Stefan Nerinckx an Employment partner in our Brussels offices says, "I predict that some companies will put in place 'neutrality' policies in the next coming months, based on the conditions set out in this ruling.  Others will seize the judgment as an opportunity to emphasise they are very diversity oriented."

Nick Thorpe an Employment partner in our London offices says, "Employers should take care before introducing wholesale changes in light of this ruling.   Dress codes can be a very contentious area and a general ban may still be difficult to enforce before a UK employment tribunal.  It is always important when introducing such rules to take account of local practices - what works in one country may not work in another."

As a European firm with offices across the continent we are able to help you navigate legal issues and cultural sensitivities.  To understand the full implications of this ruling on your business, in the UK and Continental Europe, please do get in touch with your local contact and contact either Nick Thorpe or Stefan Nerinckx.