Earlier this month, the EU’s highest court ruled that private employers are permitted to ban individuals from wearing religious symbols, including headscarves, in order to present an image of neutrality. This decision will be hugely detrimental for the protection of religious freedoms, affecting Muslim women in particular, which will undoubtedly perpetuate the increasing trend across Europe to limit or supress their ability to express their religious beliefs through how they choose to dress.
The cases were brought by two German Muslim women, who were both instructed to remove their headscarves after deciding to wear them on their return to work after parental leave. Upon referral from the German courts, the Court of Justice of the European Union (CJEU) reaffirmed a controversial 2017 ruling which set out that companies may ban staff from wearing Islamic headscarves and other visible religious symbols under certain conditions. However, this judgment went further by examining the grounds employers can use when making such prohibitions. In delivering its ruling the Court set out that, "a prohibition on wearing any visible form of expression of political, philosophical or religious beliefs in the workplace may be justified by the employer's need to present a neutral image towards customers or to prevent social disputes".
In the judgment, the Court also held that such restrictions are not discriminatory as long as they apply equally to all expression of religion or belief. Any restrictions should also ban, for example, the wearing of the Jewish Kippah and the Sikh Turban. The ban will only meet the test of objective justification where a genuine need for the rule is demonstrated by the employer and it is only applied to those workers to whom it must be applied in order to meet that genuine need. The ruling also gives Member States in the EU full discretion in deciding how to reconcile freedom of religion, freedom of thought and discrimination at work.
This ruling essentially approves what may be viewed as the erosion of the prohibition of discrimination on the grounds of religion and belief through the elevation of the rights of employers.
Although this decision is not binding in the UK, Courts and Tribunals may have regard to it in dress code cases under the Equality Act 2010. However, given the decision of the European Court of Human Rights in Eweida v British Airways, where it was held that UK law failed to protect a Christian employee's Convention right to manifest her religious beliefs, it is very unlikely that a UK Employment Tribunal would accept that a policy of neutrality amounts to a legitimate aim. The UK courts have tended to support diversity over neutrality and have intimated that only an aim as high-level as protecting health and safety is likely to be legitimate in this context. However, it remains to be seen the extent to which, if any, a UK tribunal will be influenced by a decision of the CJEU.