If the beast from the east struck again
Stephanie Bowen | 08.03.2019
26.05.2017 Naomi Greenwood
In short the answer is yes but only in certain cases. In the recent months there has been a high level of media coverage on this topic following the European Court of Justice (ECJ) giving judgement in two cases relating to Muslim women whose employment was terminated because of their insistence on wearing headscarves in the workplace: Achbita and Anor v G4S Secure Solutions; and Bougnaoui and Anor v Micropole.
Both of these cases concerned employees in customer-facing roles. The ECJ was not asked to clarify what a ‘customer-facing’ employee is exactly, and was not asked to rule on other groups of employees. However, its rulings indicate that it would be more difficult, if not impossible, to justify bans in those cases.
Taken together these cases evidence that in order for a company to attempt to justify their actions of refusing a Muslim women the right to wear a headscarf, they would need to have a 'neutrality' policy in place. This type of policy would mean that the company also bans other religious or political symbols worn by customer-facing employees, for example turbans, kippas, and/or crucifixes.
In the G4S case the ECJ held that neutrality policy did not amount to direct discrimination on the grounds of religion, as it prohibited all religious signs. This meant that no religion was treated less favourably. It was, however, found that the policy amounted to indirect discrimination, as Muslims, when compared to other religious groups, could be placed at a greater disadvantage. However, G4S’s aim to project an image of neutrality was determined to be a legitimate business aim, as long as it only applied the policy to customer facing staff rather than its staff within all other departments or roles.
We advise that if you are considering imposing a “neutrality” policy you should ensure you take legal advice to ensure that there is no unintentional discrimination within it. Additionally it is important to understand that the rulings in these cases do not provide companies with the power to enforce a headscarf ban. However they do provide useful guidance on when a ban may be deemed to be justified.