Two important rulings on the issue of Religious Discrimination in the Workplace
We have just seen the European Court of Justice (ECJ) consider two separate cases involving claims of religious discrimination in the workplace.
In the first case (Achbita and anor v G4S Secure Solutions NV) the ECJ held that a company policy which banned the wearing of all political, religious or similar signs in the workplace was held not to be directly discriminatory against Muslim employees. This finding was based on the fact that the rule prohibited all religious signs from the workplace, so it did not treat one religion less favourably than another.
The case was brought after a Muslim employee announced she wanted to wear a headscarf whilst at work, but was prevented from doing so by the Company rule. She was subsequently dismissed.
It is noted that such a rule may nevertheless give rise to a claim of ‘indirect discrimination’, although it is possible that indirect discrimination can be justified, such as if the employer is seeking a policy of political, philosophical and religious ‘neutrality’ in its relations with customers.
In a separate case that was referred to the ECJ (Bougnaoui and anor v Micropole SA), a customer, rather than the employer, asked for a Muslim employee not to wear a religious headscarf and the employee refused to comply with the customer’s request. As a result, the employee was dismissed.
The ECJ considered that it would need to determine whether not wearing the a headscarf was justified on the basis of this being a 'genuine and determining occupational requirement', following the customer’s request. The ECJ held that what was essentially direct discrimination could not be justified in this way. The 'genuine and determining occupational requirement' is only available in the limited circumstances where the requirement is objectively dictated by the nature of the occupational activities concerned or the context in which they are carried out. It would not cover ‘subjective considerations’, such as in this case where the employer was simply relying on the particular wishes of the customer.
These two cases provide both an interesting insight into religious discrimination issues in the workplace, but also some helpful guidance for employers who may have to deal with such issues from time to time.
For further advice on this or any employment law issue, contact a member of the Chattertons Employment team.