The ECJ has ruled that prohibiting workers from wearing any visible sign of political, philosophical or religious belief in the workplace is not direct discrimination, provided that the rule is applied in a general and undifferentiated way and could potentially be justified.

(IX v WABE eV; MH Müller Handels GmbH v MJ, CJEU)

BACKGROUND

The two cases in question were from Germany, involving a policy of neutrality at a children's day care centre where employees were not permitted to wear any signs of political, philosophical or religious beliefs that would be visible to parents, children and third parties in the workplace.  The policy was enforced against the Claimant wearing a headscarf and another employee wearing a cross.  The second case was from a store sales assistant who wore a headscarf and was told to attend her workplace without any conspicuous, large-size political, philosophical or religious signs.  The policy of neutrality was to prevent conflict between employees arising from religious or cultural differences which had occurred in the past.

DECISION

The ECJ held that a ban on wearing any visible sign of political, philosophical or religious belief in the workplace did not constitute direct discrimination on the grounds of religion or belief provided that the rule was applied in a general and undifferentiated way.  On the issue of indirect discrimination, a policy of neutrality was capable of being justified provided it was strictly interpreted and met a genuine need of the employer e.g. the parents' rights and wishes for the supervision of their children to be free from any manifestation of religion or belief, guaranteeing the free and personal development of children as regards religion, belief and policy.  A ban on conspicuous, large-sized signs may constitute direct discrimination and also indirect discrimination which cannot be justified, such a ban can only be justified if it covers all visible signs of political, philosophical or religious beliefs.

IMPLICATIONS

Since the UK's withdrawal from the EU, this judgment is not binding on courts and tribunals in the UK but they may have regard to it if relevant.  In the UK, the EHRC advises 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".