The European Court of Justice has ruled that employers may be able to justify a ban on all visible forms of expression of belief in some circumstances. A ban will not be directly discriminatory on the grounds of a particular belief provided it is applied generally and without differentiation (notwithstanding that those employees whose beliefs oblige them to wear certain items will be more inconvenienced than others who simply wish to wear a sign of their particular belief). However a ban could be indirectly discriminatory unless the employer can show that is justified as being a proportionate means of achieving a legitimate aim. In two German cases, the Court ruled that a policy of neutrality or to prevent social conflicts in the workplace could potentially be a legitimate aim, provided the employer can show that this meets a genuine need taking account of the rights and legitimate wishes of customers/users as well as the adverse impact to the employer of not having such a policy, given the nature of its activities and the context in which they are carried out. The policy would also need to:
- be appropriate for the purpose of achieving the aim pursued and limited to what is strictly necessary;
- be applied in a consistent and systematic manner and include all visible signs of any political, philosophical or religious beliefs (not just those that are large); and
- be limited to employees whose roles involve contact with the customers/users (or, presumably, interaction with other employees if relying on the aim of preventing workplace conflict).
In WABE v IX the employer ran non-denominational daycare centres and imposed a policy of neutrality of dress and expression with the aim of ‘guaranteeing the free and personal development of children as regards religion, belief and policy’, following the recommendations of the City of Hamburg for the education of children in daycare facilities. The ECJ noted that parents could have legitimate rights to ensure the education and teaching of their children in accordance with their religious, philosophical and teaching beliefs or conversely to have their children supervised by persons who do not manifest their religion or belief when in contact with the children, to avoid potentially influencing them. WABE’s policy applied to all visible signs and only to staff in contact with parents/children, and therefore could potentially be justified (although this will be for the national court to determine on the facts). The Court distinguished this from the situation where an employer was simply acceding to discriminatory requests from a customer, which would not be lawful.
In the joined case of Müller v MJ, the ECJ accepted that the desire to prevent conflicts between employees arising from their different religions and cultures could be a legitimate aim where such conflicts had occurred in the past. However, in that case, the ban was only on conspicuous, large-sized signs of belief and so was likely to be both unlawful indirect discrimination (as the partial ban would not have achieved the aim of neutrality) and might also be direct discrimination (given it would have a greater effect on people with beliefs requiring the wearing of a large-sized sign such as a head covering and so be based on a criterion inextricably linked with a particular religious belief).
As a result of Brexit this ruling is not binding on UK tribunals but they could have regard to it where relevant. Some press coverage has suggested that the ruling gives employers the green light to sack women wearing headscarves simply by claiming to have a policy of neutrality. This is a significant over-simplification: an employer will only be able to rely on such a policy if it can meet the prescribed conditions set out above, in particular that the policy meets a genuine need of that particular employer and is strictly necessary. It is only the legitimate wishes of customers that will be relevant (along with the impact on the employer of not adopting the policy, balanced against the impact on the employees) and this does not amount to free rein for employers to simply accede to the discriminatory prejudices of customers. The ECJ did not hold that the employers’ policies were justified in those cases, rather that they could potentially be justified depending on the national court’s assessment of the facts. It is true that the the ECJ seems to have accepted that parents have a legitimate right to have their children supervised by persons not manifesting beliefs when in contact with the children, presumably on the assumption (which is not universally accepted) that a carer or teacher manifesting their own belief through dress (or observance of ritual) has the potential for influencing the beliefs of young children and inhibiting the free development of those beliefs. But this is a discrete type of employer and the German courts will still need to determine whether there was a genuine need on the facts; the age of the children may be one relevant factor in determining whether the need is genuine. The decision does not mean that any employer who perceives that their customers would prefer only to deal with neutrally-attired employees will be able lawfully to impose a neutrality requirement.
In reality, the types of employment where such a policy will actually be justified on the facts may be few and far between (at least in the UK, where there is no constitutional principle of secularism which might justify restrictions in public sector jobs as in France or Belgium). The Equality and Human Rights Commission’s 2018 guidance notes that “it is very unlikely that an employment tribunal in the UK would accept ‘demonstrating neutrality’ as a legitimate aim capable of justifying a policy which banned all religious symbols or dress”, pointing to the decision of the European Court of Human Rights in Eweida v British Airways holding that the prohibition on wearing a discrete cross pendant was unlawful. BA’s desire to project a certain corporate image was a legitimate aim, but there was no evidence that employees’ wearing of authorised items of religious clothing, such as turbans and hijabs, had a negative impact on BA’s brand and the fact that BA had subsequently amended its uniform policy to allow symbolic religious jewellery demonstrated that the adverse impact on the employer of not having the prohibition was small. In other words, BA had failed to establish a genuine need for requiring a neutral image. This is likely still to be the case for most employers.