In brief

The European Court of Justice (ECJ) has ruled in two German cases that a ban on wearing any visible signs of political, philosophical or religious belief is not direct discrimination on the grounds of religion or belief provided it is applied in a general and undifferentiated way. Such a policy may be indirectly discriminatory unless it can be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

In contrast, a ban on any conspicuous, large-sized signs of political, philosophical or religious belief is liable to be directly and indirectly discriminatory on the ground of religion or belief given that it would have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign, such as a head covering. Such a policy is unlikely to be appropriate and justifiable.

Key takeaways

The ECJ’s decision continues the trend of previous ECJ decisions e.g. Achbita balancing an employer’s right to freedom to conduct their business against individuals’ rights to protection from discrimination on the grounds of religion and belief. It confirms that, under EU law, a policy of neutrality, where it corresponds to a genuine need on the part of the employer (e.g. based on the rights and legitimate wishes of service users), can potentially justify a ban on political, philosophical or religious signs.
The ECJ notes however that individual Member States may have more favorable anti-discrimination provisions that should be taken account of when construing EU law.
Note for UK employers: This decision does not form part of EU retained law and is therefore not binding on UK tribunals, although it can be taken into account when deciding claims for religious discrimination (which originally derived from EU law). However, the decision relies in part on an employer’s freedom to conduct their business under the Charter of Fundamental Rights of the EU, which is no longer part of UK law. The Equality and Human Rights Commission’s (EHRC) guidance on ‘Religion or belief: dress codes and religious symbols’ (which follows the case of Eweida in the European Court of Human Rights (ECtHR)) expressly states that “it is very unlikely that an employment tribunal in the UK would accept ‘demonstrating neutrality’ as a legitimate aim capable of justifying a policy which banned all religious symbols or dress”. Therefore it may be unlikely that a UK tribunal would depart from its established practice on the basis of this case.

For advice or to discuss what this means for you and your business, please contact your usual Baker McKenzie contact.

Background

Article 2 of the Equal Treatment Framework Directive (the Directive) prohibits direct and indirect discrimination on several grounds, including religion or belief. There is no defense against direct discrimination however indirect discrimination can be objectively justified by a legitimate aim provided the means of achieving that aim are appropriate and necessary.

Facts

IX was employed as a special needs carer in a childcare day center. Her employer, WABE, introduced a policy of ‘political, philosophical and religious neutrality’ prohibiting staff who were in contact with children or parents from wearing any visible signs of their political, philosophical or religious belief. She was suspended from work and then issued warnings when she refused to remove her headscarf at work. Another colleague was also told to remove a cross that was visible around her neck.

MJ was employed as a shop assistant and cashier. Her employer, Mueller, instructed her to attend work without ‘conspicuous, large-sized signs’ of any political, philosophical or religious belief, and sent her home when she refused to remove her headscarf.

Both employees brought claims in the German courts which referred questions to the ECJ querying whether the bans constituted discrimination on the grounds of religion or belief under the Directive.

ECJ decision

The ECJ ruled that:

A ban on wearing any visible sign of political, philosophical or religious belief in the workplace is not direct discrimination provided the ban is applied in a general and undifferentiated way. Since every person may have a religion or belief, the ban does not establish a difference of treatment based on a criterion that is inextricably linked to religion or belief although some individuals may experience greater inconvenience as a result of their religious belief. Although this is a question for the national courts to decide, the ECJ noted from the facts of IX that WABE had applied the ban to another employee, therefore, prima facie, it suggested that the ban was applied without differentiation.
The ban was however indirectly discriminatory unless it could be objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
A policy of neutrality can amount to a legitimate interest if the employer is able to demonstrate a genuine need for the policy. A mere desire will not be sufficient. In doing so, account can be taken of the rights and legitimate wishes of customers or users, here the children’s parents, as well as evidence that the employer’s freedom to conduct their business would be undermined if they would suffer adverse consequences without the ban.
The ban must also be appropriate, meaning that it must be genuinely pursued in a consistent and systematic manner and limited to what is strictly necessary.
In contrast, a ban on wearing any conspicuous, large-sized signs of political, philosophical or religious belief is liable to be directly discriminatory on the grounds of religion or belief given that it would have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign, such as a head covering.

Even if not directly discriminatory, it was liable to be indirectly discriminatory. Further, the ECJ held that such a ban would not be appropriate and justifiable as it considered that a policy of neutrality could only be achieved if all visible signs of political, philosophical or religious belief were banned, and not just conspicuous or large-sized ones.

IX v WABE eV; and MH Müller Handels GmbH v MJ, ECJ