In IX v WABE eV; MH Müller Handels GmbH v MJ [2021], the European Court of Justice has held that a prohibition on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not constitute direct religion or belief discrimination under the EU Equal Treatment Framework Directive, provided that the rule is applied in a general and undifferentiated way. The ECJ also held that the indirectly discriminatory effect of such a rule can be justified by an employer’s genuine business need to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, in order to take account of their legitimate wishes.

IX was employed in Germany by WABE as a special needs carer in a child day care centre. WABE applied a policy of ‘political, philosophical and religious neutrality’, which meant that employees were not permitted to wear any signs of their political, philosophical or religious beliefs visible to parents, children and third parties in the workplace. IX wore an Islamic headscarf to work on a number of occasions and was given warnings and suspended. MJ was employed as a sales assistant and cashier in a store operated by MH in Germany. She refused to comply with MH’s request to remove her Islamic headscarf and was sent home. Both employees brought actions before German courts, which referred questions to the ECJ, asking whether the treatment in both cases constituted direct religion or belief discrimination under the Framework Directive and, in so far as it amounted to prima facie indirect discrimination, whether the treatment could be justified.

The first question for the ECJ to answer in IX’s case was whether a rule prohibiting workers from wearing any visible sign of political, philosophical or religious belief in the workplace constitutes direct discrimination based on religion or belief in relation to workers who observe certain dress codes based on religious beliefs. It noted that, according to its established case law, such a rule does not constitute direct discrimination provided that it covers any manifestation of such beliefs without distinction and treats all workers in the same way.  The Court found that, provided that the rule is applied in a general and undifferentiated way, this will not constitute direct discrimination on the grounds of religion or belief. This is so even though such a rule causes particular inconvenience for workers who observe religious precepts requiring certain clothing to be worn.

The Court then moved on to consider whether the indirectly discriminatory effect of the rule in IX’s case could be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, in order to take account of their legitimate wishes. It held that justification for such a policy can only be established if the employer can demonstrate that it has a genuine need for the policy. In establishing such a need, account can be taken of the rights and legitimate wishes of customers or users, such as parents’ right to ensure the education and teaching of their children in accordance with their religious, philosophical and teaching beliefs, or their wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children. The ECJ went on to note two further conditions for objective justification: the rule must be appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which means that the policy must be pursued in a consistent and systematic manner; and the rule must be limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid.

As to MJ’s case, the ECJ had to consider whether a ban on visible signs of political, philosophical or religious beliefs in the workplace, with the aim of ensuring a policy of neutrality within that undertaking, can be justified only if the ban covers all such visible forms of expression or whether it is sufficient that the ban is limited to ‘conspicuous, large-sized’ signs. It took the view that a ban limited to conspicuous, large-sized signs of political, philosophical or religious beliefs would be liable to constitute direct discrimination on the ground of religion or belief, given that it would have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign, such as a head covering. It therefore concluded that indirect discrimination arising from such a ban can only be justified if the ban extends to all visible forms of expression of political, philosophical or religious beliefs.

Note that, following Brexit, this judgment does not bind courts and tribunals in the UK. However, UK courts and tribunals may ‘have regard’ to it ‘so far as it is relevant to any matter before the court or tribunal’.