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ECJ rules prohibiting hijab at work is not discriminatory

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By Patrick Stewart

We have previously reported Advocate General Kokott’s opinion that a dress code which prohibited an employee, A, from wearing a hijab at work did not amount to direct discrimination based on religion or belief. The A-G also considered that it would not be indirectly discriminatory, as it was objectively justified by the employer's legitimate commercial objective of religious and ideological neutrality (Click here to read previous article). The European Court of Justice (ECJ) has now given its final decision on the matter which largely accords with that opinion.

The ECJ held that, as G4S’s policy prohibited the wearing of all religious signs, it was treating all employees in the same way by requiring them to dress neutrally. The rule had not been applied any differently to A as compared to any other G4S employee. Accordingly, the policy did not amount to a difference in treatment based on religion or belief, and it was not directly discriminatory.

However, the ECJ stated that it may amount to indirect discrimination on the basis that the policy had the indirect effect of disadvantaging Muslim employees (who were more likely to want to wear a ‘religious sign’ to work). In order to avoid this finding, the policy would need to be ‘objectively justified’ i.e. shown to be a ‘proportionate’ means of achieving a ‘legitimate aim’. The ECJ stated that an employer’s desire to project an image of neutrality towards customers could be considered a ‘legitimate aim’. However, the employer would still need to demonstrate that the means of achieving that aim were reasonable, appropriate and necessary. Arguably G4S should have offered A an alternative (non client facing) position rather than dismissing her outright.

Although a noteworthy ruling, employers should continue to tread carefully if seeking to implement a similar dress code. Interestingly, the ECJ gave a separate judgement on the same day which held that a company’s objection to an employee wearing a hijab was discriminatory. The prohibition in this case arose due to a customer complaint, rather than based on a policy of neutrality which was applied consistently to all. Employers will therefore need to ensure that they can adequately justify the need for any such policy, based on something other than prejudices or stereotypes, as well as ensuring they treat all employees in the same way regardless of their religion or beliefs.

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