IX v WABE eV; MH Muller Handels GmbH v MJ, ECJ (C-804/18 and C-341/19)
The German courts referred two cases to be considered by the ECJ. One involved a special needs carer in a children’s daycare centre. She had worn a headscarf to work on a number of occasions, in breach of her employer’s policy that employees were not permitted to wear any visible signs of their political, philosophical or religious beliefs in the workplace. She had been given warnings and was suspended from work. The other case concerned a retail sales assistant who was sent home when she refused to comply with a request to remove her Islamic headscarf.
Both employees brought actions in the German courts for religion or belief discrimination, which were referred to the ECJ for consideration of whether the treatment in question amounted to discrimination under the EU Equal Treatment Framework Directive.
The ECJ held that a rule prohibiting workers from wearing any visible sign of political, philosophical or religious belief in the workplace does not constitute direct discrimination, provided that it covers any manifestation of such beliefs without distinction (not limited to conspicuous or large signs of those beliefs) and treats all workers of the undertaking in the same way.
The ECJ went on to consider whether the indirect discrimination resulting from a rule in the workplace preventing the wearing of any visible sign of a religious belief could be justified by an employer’s policy of neutrality. The ECJ held that justification could only be established if the employer can demonstrate that it has a genuine need for the policy, rather than just a desire for neutrality. In establishing such a need, the rights and legitimate wishes of customers or users can be taken into account. For example, the rights of parents to have their children supervised by people who do not manifest their religion or belief.
The ECJ concluded that the indirect discrimination arising from a ban of religious symbols can only be justified if the ban extends to all visible forms of expression of political, philosophical or religious beliefs.
Note that it will be for the domestic German courts to decide whether, on the facts of each case, the indirect discrimination resulting from the employers’ policies could be justified. Account must also be taken of any additional requirements under national law to justify indirect discrimination on grounds of religion or belief.
According to this decision, an employer’s dress code banning all signs of political, philosophical or religious belief will only meet the test of objective justification where a genuine need for the rule is demonstrated by the employer. This is likely to be difficult for most employers to establish in practice. Following the decision of the European Court of Human Rights in the case of Eweida v British Airways plc  IRLR 322 and guidance on dress codes issued by the EHRC, it is unlikely that an employer’s policy of neutrality would in itself be accepted as a legitimate aim by the UK courts and tribunals.
As a result of the UK’s exit from the European Union, this decision is not binding on UK courts and tribunals, but they may still ‘have regard’ to it so far as it is relevant to any matter before the court or tribunal.
This article is from the July 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2021.