New Headscarf Ruling From The European Court Of Justice Gives Guidance On Neutral Dress Codes

• Published date: 29 July 2021
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: lus Laboris
• Author: Ius Laboris

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In two recent combined cases relating to employees choosing to wear a headscarf, the European Court of Justice has provided guidance on how employers can enforce a neutral dress code.

On 15 July 2021, the European Court of Justice ruled in two German cases that a neutral dress code in the workplace does not constitute either direct or indirect discrimination based on religion or belief. The Court set some conditions for these neutral dress codes, including the employer's obligation to prove that the neutrality policy meets a 'genuine need'. This genuine need can be both a need for a neutral attitude towards customers and a need to avoid social conflict in the workplace.

Facts

Case IX v WABE

The first of the two combined cases concerned an employee who was employed as an special needs caregiver in a large group of day-care centres. In order to ensure the children's individual and free development with regard to religion, philosophy of life and politics, a neutrality policy applied in the day-care centres. However, this neutrality policy did not apply to employees in the organisation's head office, as these employees did not have contact with the parents or children.

Upon returning from parental leave, the caregiver was wearing an Islamic headscarf that she refused to take off. The day-care centre decided to temporarily suspend the employee and to give her a warning. Subsequently, she brought a case before the labour court and requested that the day-care centre be ordered to remove the warning from her personnel file.

Case MH v MJ

The second case involved an employee who worked as a sales consultant and cashier in a department store. Since the employee refused to remove her Islamic headscarf, she was initially transferred to a position where she could continue to wear her headscarf. After some time, the department store decided to introduce a neutrality policy to prevent conflicts between employees. In the past, there had been several conflicts between personnel due to differences in religion and culture.

On the basis of this new neutrality policy, the employee was sent home, after which she received a warning requiring her to return to work without any large, prominent signs of political, philosophical or religious beliefs. The employee contested the validity of the warning and claimed damages.

Confirmation of previous...