The Court of Justice of the European Union (CJEU) has provided some (much needed) clarity in relation to whether banning religious clothing and symbols is an act of direct or indirect discrimination.
Direct discrimination occurs when an employee is treated less favourably than others because of a Protected Characteristic (PC) such as that employee’s gender, sexual orientation or disability. An example of direct discrimination is where an employer withdraws a job offer because the candidate is pregnant.
Indirect discrimination occurs when a rule is applied to everyone but it puts a group with a PC at a particular disadvantage. An example here is where the employer does not allow part-time working, as such a rule puts women at a disadvantage given that they (in the opinion of the courts) tend to have a greater need to work part-time due to caring responsibilities.
The distinction between the two is significant. In general terms, direct discrimination cannot be justified, whereas indirect discrimination can be justified if the disadvantage is a proportionate way of meeting a legitimate business aim.
In 2016, two similar cases were heard involving Muslim women whose employers banned headscarves in the workplace. However, while the circumstances in each case were broadly similar, the Advocate Generals (AG) involved came up with different opinions regarding the applicable law.
In one, the AG stated that such a ban was direct discrimination on religious grounds and could not be justified, but her counterpart in the other case stated that the ban was indirect discrimination that could be justified in certain circumstances.
The CJEU has agreed with the latter approach, confirming that a ban on headscarves (as an example) would not constitute direct discrimination on the grounds of religion. In addition, while it stated that such a ban could constitute indirect discrimination, it also stated that the ban could be justified ‘in order to enforce a policy of religious and ideological neutrality pursued by the employer’, provided that the ban is applied proportionately.
When assessing proportionality, the CJEU noted that the following factors will be relevant:
- the size and conspicuousness of the religious symbol (or clothing);
- the nature of the employee’s activity (e.g. customer-facing);
- the context in which the employee has to perform that activity; and
- the national identity of the Member State (i.e. the UK) concerned.
While this decision may be helpful to employers as a potential means of defending a policy preventing the wearing of certain types of religious dress in the workplace, caution should nevertheless be exercised.
Justification of indirect discrimination, while possible, can often be a high burden to overcome and will depend on the circumstances of each case. The decision could well have been different had the employees in question been operating in a different environment or undertaking different work.
It would also seem likely that, in order to get away with stating that ‘neutrality’ is an aim of the employer, it would have to operate similar practices in relation to other religions.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.