The Court of Justice of the European Union (CJEU) has held in the conjoined cases of IX v WABE Ev and MH Müller Handels GmbH v MJ that it is not direct discrimination for an employer to introduce a uniform ban rule which prohibits workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace as long as it does not make a distinction between different types of visible signs.

Basic facts

IX had worked for WABE as a special needs carer from 2014. At the beginning of 2016, she started wearing an Islamic headscarf. In March 2018 WABE adopted a policy of political, philosophical and religious neutrality which meant that employees were banned from wearing “any signs of their political, philosophical or religious beliefs that are visible to parents, children and third parties in the workplace”. When IX refused to remove her headscarf, she was temporarily suspended and given a warning.

MJ, a sales assistant and cashier for MH Muller since 2002, started wearing an Islamic headscarf in 2014. When she refused to remove it, her employer initially transferred her to another post where she was allowed to wear it. However, she was later told to come to work without it because of a rule banning “conspicuous, large-sized signs of any political, philosophical or religious beliefs”.

Both IX and MJ brought claims before the German national courts.

Questions from lower courts

The German courts referred a number of questions to the CJEU including :

• whether a rule prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace constituted direct discrimination on the grounds of religion or belief in relation to workers who observe certain clothing rules based on religious precepts; and
• whether the indirectly discriminatory effect of the rules applied to IX and MJ could be justified.

Decision of CJEU

With regard to the claim brought by IX, the CJEU referred to the decision in Achbita v G4S Solutions (weekly LELR 519) which held that such a rule did not constitute direct discrimination on the grounds of religion or belief if all workers are treated the same by requiring them in a general and undifferentiated way to dress neutrally. That is, without wearing visible signs of political, philosophical or religious beliefs. Even if it was particularly inconvenient for workers who wore certain clothing based on their religious beliefs, a policy of neutrality does not in principle establish a difference of treatment that is inextricably linked to religion or belief. In fact, the employer had required another employee to remove a religious cross so IX did not suffer a difference in treatment based on her religious beliefs.

As for the claim of indirect discrimination, the CJEU held that the employer’s desire to display a policy of political, philosophical or religious neutrality in their relations with customers was not enough to amount to objective justification. That could only be established if the employer could demonstrate a “genuine need” for the policy. This could include the parents’ right to ensure the education and teaching of their children in accordance with their religious, philosophical and teaching beliefs, or their wish to have their children supervised by people who do not manifest their religion or belief when they are in contact with the children. Any justification must also be appropriate, which means that the policy must be applied in a consistent and systematic manner and be limited to what was strictly necessary to avoid the employer suffering any adverse consequences to their business.

In connection with the claim pursued by MJ, the CJEU held that a prohibition limited to “conspicuous, large-sized signs” was liable to have a greater effect on people with religious, philosophical or non-denominational beliefs which required them to wear items such as a head covering. As such, prohibiting people from wearing those signs was liable to constitute direct discrimination on the grounds of religion or belief, which could not be justified and would be unlawful.

Comment

Although the judgment in this case is not binding on the UK courts, they can have regard to it where it is relevant to a matter they are considering. The case is a reminder to employers that they should not assume that a uniform ban which is applied equally to everyone will not be discriminatory. Whether it is or not will very much depend on the nature of the ban and whether the employer can establish a genuine need for it.