What your company needs to know about the new EU court ruling on headscarves at work

What happened?

The Court of Justice of the European Union (CJEU) recently ruled that companies can have a general policy banning all religious and political symbols if it is ‘objectively justified’, as the Court says. The problem is that in 2013, the European Court of Human Rights (ECHR), an entirely separate institution from the Court of Justice, held that employees have the right to manifest their freedom of religion at work.

The ECHR decided that a British Airways check-in worker was prevented from expressing her religious belief when she was banned from wearing a crucifix at work. Even though BA went on to amend their uniform policy to allow her to wear a crucifix, the ruling was thought to have established a precedent which has now been thrown into confusion.

Two women, from Belgium and France, were dismissed from their jobs for refusing to remove Islamic headscarves. In the first case from Belgium, a receptionist for the security company G4S was fired after she decided to start wearing a hijab. The company said this violated internal rules barring religious symbols at work. The Court found the ‘dress neutrally’ policy applied to all employees equally.

In the French case the woman, a design engineer for an IT company, was dismissed after a customer complained about her headscarf. In this case, the Court said she had suffered discrimination as the company had no existing ‘dress neutrally’ policy.

What might happen next?

The Court of Justice has sent the cases back to the French and Belgian courts for a final decision. Those courts may take the ECHR judgement, as well as national laws, into consideration. France already has a ban on religious symbols including the headscraf in public places.

The two rulings are potentially contradictory. One court says a workplace can ban wearing religious symbols, another says it’s a fundamental right. There is no formal mechanism for resolving disputes between the Court of Justice and the European Court of Human Rights, and neither is legally bound by each other’s decisions.

How to respond

If there is a company policy on the wearing of visible signs of political, philosophical or religious belief at work, consider how it balances different rights. The right to express religious belief, the right to be protected from discrimination, and the right of the company to promote a certain image must all be balanced. Consider how the company’s religious freedom or diversity policy is communicated to staff and how exemptions and appeals are handled.

Outright bans may not be justified if a worker could be transferred to a non-customer facing role, if the policy only applies to certain religious symbols and not others, or if a symbol must be removed in response to a customer complaint. The new ruling makes it clear that any general ban must be objectively justified. It is important to note that any bans could still be found in breach of the ECHR ruling that permitted the expression of religious belief at work.

If there is no specific policy and the issue of wearing religious or political symbols is left up to individual managers or decided on a case-by-case basis, then the company may be more vulnerable to claims of discrimination.

In the UK, general dress code policies must allow for exceptions, particularly on religious grounds. The Equality Act essentially forbids policies that would discriminate against or disadvantage people on religious grounds (as well as disability, race, gender reassignment and other protected characteristics), except for demonstrable health and safety reasons.

Promoting a diverse and welcoming workplace is a value many companies take seriously, even when it means going above and beyond the law. Providing training to all staff on equality and diversity and developing clear policies to support this helps create an atmosphere of acceptance. Today, businesses often see more value in a brand that encourages diversity, as opposed to one that defends homogeneity. HR departments may want to take this opportunity to reaffirm their commitment to an open and welcoming workplace.