Can Policies Prohibit Employees From Wearing Political, Philosophical or Religious Signs In The Workplace?
There have been many legal cases about the wearing of religious symbols in the workplace. In such cases courts often need to decide if a ban or partial ban is discriminatory on the grounds of religious belief...
... or if it can be justified by a policy of neutrality.
A recent opinion of an Advocate General to the European Court of Justice emphasises the existing position that bans or partial bans on the wearing of religious symbols which apply equally to all will not:
- amount to direct discrimination
- amount to indirect discrimination if they relate to a legitimate aim (such as an employer's desire for neutrality) and are a proportionate means of achieving that aim
Advocate General's Opinion
The Opinion was given in response to two German cases where, in one case, an employer had prohibited the wearing by their customer-facing employees of any visible signs of political, philosophical or religious beliefs in the workplace and, in another, an employer had instructed an employee to attend her workplace without any conspicuous, large-scale political, philosophical or religious signs. In both cases, the employers' rules were challenged by employees of Muslim faith who had been prohibited from wearing the Islamic headscarf. The two German courts asked the European Court of Justice if the rules complied with the Equal Treatment Framework Directive.
In the Advocate General's view:
- an employer's rule that prohibits employees from wearing any visible signs of political, philosophical or religious beliefs can be justified in the context of pursuing political, philosophical and religious neutrality in the workplace
- An employer should be at liberty to prohibit only the wearing of large-scale, conspicuous signs such as hats, turbans and headscarves - however the prohibition must be part of a policy of political, philosophical or religious neutrality and be implemented in a consistent and systematic manner
It will be left to national courts to determine, on the facts of each case, whether an employer's policy on the wearing of religious symbols can be justified.
What Does This Mean for Employers?
Advocate General Opinions are not binding on the European Court of Justice, but they are influential and often followed by the court. Although the UK withdrew from the European Union on 31 January 2020, the UK courts will also continue to consider issues of EU law and the findings of the ECJ will remain influential.
Employers seeking to implement rules that prohibit the wearing by employees of political, philosophical or religious signs in the workplace should ensure that this is done in a consistent and systematic manner and that there are objective and justifiable business reasons for doing so. Whether such rules can be justified will depend on the facts of each case and the arguments are often finely balanced. For example, is it necessary to have a complete ban for all employees or just those who are customer facing? Is a complete ban necessary, or will discreet symbols be permitted? Is the employer's policy an unjustified response to customer complaints or well founded on objective evidence?