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Case law update: Religious Discrimination – Is banning headscarves in the workplace discriminatory?

No, according to the Court of Justice of the European Union (CJEU).

The CJEU in its decision in the case of ‘Achbita -v- G4S Secure Solutions NV’, has held that the banning of a headscarf does not constitute direct discrimination in the work place. The decision means that in theory employers can put policies in to place which ban the visible wearing of political, philosophical or religious symbols, should they choose to do so.

The wearing of religious symbols in the work place has been a hot topic in the press over the past 18 months and readers may recall the similar cases of ‘Bougnaoui -v- Micropole SA’, dealing with an employee wearing a hijab, and ‘Eweida -v- British Airways’, dealing with an employee wearing a cross necklace, both, notable cases which dealt with the wearing of visible religious symbols in the workplace.

The decision of the CJEU, has found that prohibiting an employee from wearing a headscarf can be justified by an employer’s general policy of neutrality. This can be justified where the ban is applied consistently to all visible signs of religious or philosophical beliefs. In this case, the employer, G4S operated a policy of ‘neutrality’, which prevented employees from wearing political or religious symbols.

The CJEU has held that G4S’ policy did not amount to direct discrimination on the grounds of religion as it was to be applied to all religious symbols. Accordingly, the policy did not treat one religion less favourably than another religion.

The outcome
If an employer has an internal policy which bans the wearing of visible political, philosophical or religious symbols in the workplace, such as a headscarf, it will not amount to direct discrimination based on religion or belief, if it is part of a policy of neutrality. Employers should however, note that such a ban could potentially constitute indirect discrimination if the neutral obligation it imposes means that employees with certain beliefs, or those following a particular religion are being put at a disadvantage.

What does this mean for business?
This judgment really demonstrates to business’ the importance of having clear and well drafted policies in place, which must be applied equally to all staff.

The ruling does not mean that a business can place outright bans on religious clothing in the workplace, and employers should be cautious of imposing bans. We would advise that forethought is given when considering putting such a policy in place, the business should ask itself; what is the reasoning behind the policy? what impact will this have on the staff, and will it potentially affect morale? How are staff likely to react to such a policy? and, would it be a policy that would affect one particular section of the workforce only and not others?

Despite the ruling in this case, there is the potential for employers to fall foul of discrimination law when implementing policies such as these. All employers should adopt a cautious approach when considering putting bans/prohibitions in place, and always seek legal advice before taking any action.

Should you have any questions on this topic, or if you need advice with regards to any existing or new policies, please contact Lindsey or Sarah on 0161 478 3800 or email us at hello@peachlaw.co.uk.

Case law update: Religious Discrimination – Is banning headscarves in the workplace discriminatory?

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