In a recent case, The Court of Justice of the European Union (CJEU) had considered whether it is discriminatory for an employer to have a “neutral” dress policy in place which prohibits employees from wearing anything that expresses their religious, political or philosophical beliefs.
The CJEU decided that such a policy does not constitute direct religion or belief discrimination with the aim of ensuring neutrality in the workplace which can reasonably be justified when the ban extends to all forms of expression of religious denomination, political or philosophical belief, only when, the “neutral” dress policy is applied equally towards all employees
The CJEU also commented that the indirect discrimination arising out of a “neutral” policy can be justified if an employer demonstrates a genuine business need for such a policy and can take into account the wishes of their customers or users while establishing the genuine need.
The facts of IX v WABE eV and MH Muller Handels GmbH v MJ
The CJEU held that prohibiting workers from wearing signs of political, philosophical or religious belief does not constitute direct discrimination so long as the rule is applied in a general way across the entire workforce. IX was employed by WABE, a company running non- partisan and non-denominational child day care centres which had a “neutral” dress policy in place. IX wore an Islamic headscarf to work on a number of occasions, she was given multiple warnings with reference to the neutral dress policy and was subsequently suspended for noncompliance. Similarly, MJ, a sales assistant in a shop operated by MH also wore an Islamic headscarf. MH had a policy which prohibited employees from wearing “conspicuous large-sized signs” of political, philosophical or religious belief. MJ was sent home from work for refusing to remove her headscarf. Both employees took legal action against their employees as a result.
The CJEU decided that when a “neutral” dress policy is applied towards the entire workforce in a general and undifferentiated way it will not amount to direct discrimination as no employee as a result of enforcing the policy suffers a different treatment from another.
In the case of IX the court then also considered whether the “neutral” dress policy is indirectly discriminatory. The CJEU noted that a mere “desire” to have a neural dress policy is not a sufficient enough reason to pursue political, philosophical and religious neutrality in the workplace. An employer must instead demonstrate a genuine need for the policy and can take into account wishes of customers and users. The CJEU further noted that such a policy must be pursued consistently and must be limited to what is strictly necessary considering the issues the employer is seeking to avoid.
When could a work dress policy amount to race discrimination?
In the case of MJ the ECJ noted that where an organisation’s dress policy limits employees from wearing “conspicuous, large-sized” signs of expression it would constitute direct religion or belief discrimination on the basis that such a policy would prejudice those whose philosophical, political or religious belief requires them to wear a large piece of clothing or sign, such as an Islamic headscarf.
The Judgement, therefore, concluded that indirect discrimination arising from a “neutral” policy can only be justified if the policy bans all visible forms of expression along with the employer clearly demonstrating a genuine need for such a policy and applying it consistently.
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