Dress Codes Relating To Wearing Signs Of Religious Belief Considered By The Advocate General

• Published date: 05 May 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment
• Law Firm: Stevens & Bolton
• Author: Ms Rebecca Berry

The Advocate General (AG) has recently provided an opinion that a dress code which only allows individuals to wear small scale signs of religious belief, while banning larger scale signs, could be justified.

The German courts had referred two cases to the European Court of Justice (ECJ) to consider whether dress codes which prohibited certain forms of religious dress were indirectly discriminatory against individuals holding a philosophical or religious belief. Indirect discrimination is capable of being justified if it is a proportionate means of achieving a legitimate aim.

The two cases involved:

1. A carer in a child care setting who wore an Islamic headscarf The employer had required all employees to observe 'political, philosophical and religious neutrality' to enable the children in their care to be free to develop their own beliefs. All employees were informed signs such as a Christian cross, Muslim headscarf or Jewish kippah were unable to be worn around the children.
2. The second case involved a member of sales staff at a pharmacy who also wore an Islamic headscarf. The pharmacy asked all staff not to wear large-scale religious signs.

Both individuals claimed that their employer's instruction was discriminatory on the grounds of religion or belief. The German courts asked the ECJ to consider, amongst other things, whether indirect discrimination on the grounds of religion could be justified by the employers stated aim of a policy of political and religious neutrality and whether a policy could be justified which prohibited large-scale religious signs, but permitted smaller scale signs.

The AG's opinion

The AG concluded that the employers' directions not to wear headscarves were not directly discriminatory against either individual, because it was a direction given to all employees regardless of their faith. Rather than specifying that individuals of a particular religion could not wear specific manifestations of their faith, e.g. that a Muslim employee could not wear headscarves, the employer had issued general directions applying to all employees of all faiths.

Turning to the question of indirect discrimination, the AG noted that in these two cases there was a legitimate aim. In the second case, the...