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New ECJ ruling

The European Court of Justice ruled yesterday that workplace bans on the wearing of “any political, philosophical or religious sign” need not constitute direct discrimination.

At this time of heightened religious awareness it is important that employers do not take the ECJ ruling at face value or just read the headlines, it is far more complex than that.

The ruling was clear that the court will only support a ban in limited circumstances. The ruling, which is more nuanced than a straightforward ban, could sow confusion about which religious symbols can be worn at work and could breed discrimination from colleagues and customers if not handled properly.

The ban must be based on internal company rules requiring all employees to “dress neutrally” and the ban must encompass ALL signs of a religion like wearing a cross and not just a headscarf. This ruling applied to a customer facing role where the neutrality of the company was demonstrated.

Such a policy cannot be based on the wishes of a customer. Customers cannot simply demand workers remove headscarves if the company has no policy barring religious symbols – this may be an issue that employees and managers may face and need training, support and guidance on.

The courts ruled that if it is an employer’s desire to project an image of neutrality towards its customers then banning religious insignia is legitimate. However, the policy of neutrality was applied equally to all employees and it cannot be in response to the wishes of a customer.

Therefore employers must make sure that this policy bans other religious insignia such as crucifixes, skullcaps and turbans.

But employers should be extremely careful when consideringapplying bans on religious dress. You will still have a duty to show that you have not enabled indirect discrimination against your employees. There must be clear legitimacy of the policy and necessity for the business, applied appropriately.

Campaign and religious groups have voiced concerns that this ruling could allow employers to discriminate against employees and potential employees on the grounds of religious belief.