Employment Law Cases

IX v WABE; MH Müller Handels v MJ

A ban on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not amount to direct discrimination under EU law, provided that such a rule is applied in a general and unconditional way.

Background

These two cases before the ECJ concerned two employers imposing slightly different rules on the wearing of headscarves at work:

• IX wore a headscarf. Her employer asked her to remove it in line with its policy of banning any visible sign of political, ideological or religious beliefs. She was disciplined when she refused to do so.
• MJ also wore a headscarf at work and when asked to remove it by her employer was transferred to another post. She was then asked to attend work without conspicuous, large-sized signs of any political, philosophical or religious beliefs.

Both employees brought proceedings in the German courts which asked the ECJ whether the treatment in both instances amounted to direct religion or belief discrimination (under the Equal Treatment Framework Directive) and, if it amounted to indirect discrimination, whether it could be justified.

ECJ decision

The ECJ held that a universal rule of the sort in IX v WABE could not constitute direct discrimination. The rule did not target the adherents of any specific religion - it was of universal application and drew no distinctions between any different types of visible signs. This is so even though such a rule causes inconvenience for workers who observe religious precepts requiring certain clothing to be worn.

As to whether the indirectly discriminatory effect of such a rule could be justified, the ECJ commented that the employer’s desire to achieve a sort of neutrality is not enough in itself. Justification can only be established if the employer can show that it has a genuine need for a policy. To establish such a need, account can be taken of the rights and legitimate wishes of customers or users, such as parents’ right to ensure the education and teaching of their children in accordance with their religious, philosophical, and teaching beliefs, or their wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children. There are two further conditions for objective justification:

1. the rule must be appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied (i.e. any policy is pursued in a consistent and systematic manner), and
2. the rule must be limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid

By contrast, rules of the sort in MH Müller Handels v MJ, which only prohibited the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs were unlikely to be acceptable under the provisions of the directive. This is because, unlike a universal ban of such signs, a rule which only prohibited conspicuous, large-sized signs was liable to be seen as targeting a particular religion, i.e. Islam, whose adherents commonly wear such large signs (e.g. the hijab), and so was liable to amount to direct discrimination against the adherents of that religion.

Link to judgment: https://www.bailii.org/eu/cases/EUECJ/2021/C80418.html

Comment

These judgments, coming as they do after the implementation completion day post-Brexit, are not binding on UK courts/tribunals – but they may have regard to them in so far as they consider them relevant to any matter they are considering.