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Can you ban a religious headscarf in the workplace?

View profile for Kate Johnson
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Can an employer justify a ban on religious headscarf in the workplace?

In the recent case of IX -v- WABE, the European Court of Justice (“the ECJ”) held that a ban on wearing Islamic headscarves at work can only be justified if it applies to all visible signs of political, philosophical and religious beliefs. Therefore, an employer implementing a ban on conspicuous, large-sized signs of political, philosophical, or religious beliefs is likely to constitute as direct discrimination. 

Facts

WABE (the Respondent in these proceedings) operates non-denominational child day care centres in Germany. They implemented a new policy requiring their employees to observe political, philosophical and religious neutrality, including expressions of religious dress. WABE stipulated that this requirement was on the basis that it wished to avoid internal social conflict between its workforce, but also to avoid the children being unduly influenced by their teachers with regards to religion and philosophical beliefs. 

IX, the Claimant in these proceedings, was a special needs teacher employed by WABE. IX wore an Islamic headscarf and upon refusing to work without wearing it, was subsequently suspended and given a written warning for her failure to follow company policy. 

During the same period, WABE requested another employee to remove her cross that she wore around her neck. 

IX issued proceedings against WABE within the German jurisdiction whereby she challenged the school’s decision to temporarily suspend her and issue her with a warning.

Judgment

The ECJ concluded that WABE’s blanket ban on wearing visible signs of political, philosophical or religious beliefs in the workplace, did not constitute direct discrimination, because they had applied the rule to everyone. 

The ECJ held that as WABE also requested the other employee to remove their cross, they had applied the rule without differentiation, meaning that IX could not have suffered a difference in treatment based on her religious beliefs. 

There was, however, a finding that the rule would statistically affect female workers who wore the Islamic headscarf and therefore, the rule would discriminate indirectly on the grounds of religion or philosophical belief. Considering this further, the ECJ turned to assess whether the rule could be objectively justified on the grounds of being a proportionate means of achieving a legitimate aim. The justification relied upon by WABE in this instant case was their desire to avoid internal conflict within its workforce, but also to implement a policy of neutrality to prevent the children from being influenced by their teacher’s religion or philosophical beliefs. 

The justification of indirectly discriminating against a worker on the grounds of their religion and philosophical belief will only be met if:

1. There is a genuine need for the rule.

2. That rule is applied generally to the workforce.

3. The rule is only applied to those necessary to meet the genuine need. (i.e WABE did not apply to rule to those employees in head office as they were not exposed to students or parents). 

Conclusion

The size of the religious symbol is outside of the wearer’s control. For example, an Islamic headscarf is large-sized, in comparison to a Christian cross which can be more discreet. 

Therefore, stipulating that the ban relates only to large-sized religious signs is likely to amount to direct discrimination, and indirect discrimination if the rule cannot be objectively justified as being a proportionate and necessary means of achieving a legitimate aim.  

Closing Point to Note

As this case arises from the German jurisdiction and subsequent European Court of Justice, the judgment is not binding in the UK. However, notwithstanding this, it should be borne in mind that our courts and tribunals may have regard to this decision in dress code cased under the Equality Act 2010, but to what extent and influence is yet to be tested.