Signing off from work
Can an employer implement a policy prohibiting his employees from wearing any visible religious signs at the workplace or does it constitute direct discrimination?
The European Court of Justice (ECJ) in the case of IX v WABE has held that such a policy does not constitute direct discrimination and that it may be justifiable indirect discrimination.
WABE ran child day care centres in Germany and adopted a policy of ‘political, philosophical and religious neutrality’ to enable children to develop ‘individual and free’ points of view with regards to religion, belief and politics. Under the policy all its employees coming into contact with parents, children and third parties had to comply with a requirement of political, philosophical and religious neutrality which included a “neutral” dress code.
This policy was implemented while IX, employed by WABE as a special needs carer, was on parental leave. IX wore a head scarf to work for religious reasons. She was given numerous warnings and temporarily suspended for not complying with their policy.
IX brought actions before German courts, which referred the case to the ECJ for a preliminary decision to decide if instructions prohibiting the wearing of any visible sign of political, philosophical or religious belief in the workplace constitutes direct discrimination in relation to workers who observe certain dress codes for religious reasons and, alternatively, if this constituted indirect discrimination, whether it may be justifiable as a means of achieving a legitimate aim.
Acknowledging that such a policy is capable of causing particular inconvenience for employees like IX, the ECJ held that it is not direct discrimination for an employer to require a neutral dress code, as long as the policy is applied in a general and undifferentiated way. The ECJ highlighted that a ban of visible signs of political, philosophical or religious beliefs can only be justified by an employer if it applies to all visible signs and not just to conspicuous or large-sized signs.
When considering the allegation of indirect discrimination the ECJ confirmed that the policy could be justifiable if the following three conditions are met. Firstly, there must be a genuine need for such a policy, taking into account legitimate customer wishes as well as the adverse consequences an employer would suffer if such a policy was not in place. Secondly, the approach taken by the employer to ensure compliance must be appropriate and therefore needs to be properly enforced with the policy applied in a consistent and systematic manner. Finally, the application of the policy must be limited to what is strictly necessary to achieve the aim of the employer. The German courts will now use this decision to determine if they consider whether WABE’s approach is lawful or not.
Although this judgment, following Brexit, doesn’t bind courts and tribunals in the UK, they may still ‘have regard’ to it ‘so far it is relevant to any matter before the court or tribunal and it gives some helpful high level clarification on the factors that help determine if a policy is deemed discriminatory or not. In practice there are unlikely to be many workplaces in which the employer can establish there is a genuine need for such a blanket policy so businesses will need to think very carefully before imposing such strict dress codes.