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Case Law – Religious Headscarf cases: direct and indirect discrimination

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The Court of Justice of the European Union (CJEU) finally handed down its long-awaited decision in relation to two cases of female Muslim employees dismissed after wearing headscarves to work.

 

In the more important of the cases, G4S in Belgium dismissed a receptionist for breaching its policy of 'neutrality', which prohibited employees from wearing any visible signs case of their political, philosophical or religious beliefs. The CJEU found this did not amount to direct discrimination since the same policy applied to all staff.

 

On the more interesting question of whether it amounted to indirect discrimination, the CJEU had not been asked to determine the point. However, it expressed the view that pursuing a policy of neutrality could be a legitimate aim and that such a restriction in a customer-facing role may be considered necessary. It went on to suggest that the Belgian court (to which the case will now return) would have to consider whether redeployment, rather than dismissal, would have been possible.

 

BE VERY CAREFUL! Although the G4S case has been widely reported as a decision confirming that employers can ban headscarves, this simply overstates the impact of the ruling and is rather incorrect – it’s not the full picture and employers would be wise to know the full ins and outs before making a decision based on the press headlines alone. In particular, you need to be aware that the CJEU was not determining the indirect discrimination claim and as such, despite this ruling, it would be open to a UK employment tribunal to take a different view in an appropriate case. A recent ‘Neil’s Nugget’ email (17th March) went into further details as to why the headlines and many commentators were making false claims about the decision in this case -  if you want to read it again, just email us form a copy!

 

You should therefore to continue to take a cautious approach, based on cases of genuine necessity. As the previous cases involving the wearing of a visible crucifix by a Christian have shown, a requirement imposed for health and safety reasons may be justified, whereas a wish only to maintain a consistent corporate image may not be.

 

In the other case, which arose from a French design engineer being dismissed after a customer complained about her wearing a headscarf, the CJEU (unsurprisingly) held that a customer’s wishes that an employee not wear a headscarf was not a ‘genuine and determining occupational requirement’. Discrimination based on customer preference is therefore not permissible.

 

Comment: ‘Act in haste, repent in leisure’ is the warning with banning religious articles and items of clothing – take advice before doing anything you may regret. Bear in mind that imposing unnecessary restrictions is highly likely to also narrow the talent pool.  for example, that one in three young people entering the labour market have at least one tattoo nowadays (not the sole domain of bikers and footballers now!) – which also raises the prospect of a potential indirect age discrimination issue.


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