Today’s ruling by the Court of Justice of the European Union (CJEU) that employers can ban Muslim women from wearing headscarves has attracted a good deal of publicity and comment from both sides of the argument. But it’s important for small business owners to understand the implications of the decision before deciding whether or not they need to do anything at all about this ruling.
First – and probably the most important point – is that banning a Muslim woman from wearing a headscarf is not direct discrimination only if it is part of a policy that all employees are not allowed the “visible wearing of any political, philosophical or religious sign in the workplace”. In other words, such a ban must also prohibit, amongst other things
· Wearing of a cross by a Christian
· Wearing of a turban by a Sikh
· Wearing of a Kippah by a Jewish man
· Anyone wearing a t-shirt with a religious, atheist or philosophical message (such as this for example)
· Rastafarians having dreadlocks
I’m sure you can think of others (wearing a poppy in the lead up to Remembrance Day for example?).
But even if you want to introduce such a ban (and we’ll look at why in a minute) you need to beware that such a policy might be indirect discrimination – in other words a requirement which, although it appears to treat everyone equally, disproportionately affects one particular group. Indirect discrimination is permitted by an employer if it is ‘objectively justified by a legitimate aim”. In the cases before the CJEU, the court decided that a legitimate aim could be that a company wished to convey an image of political, religious or philosophical neutrality to its customers, but that the desire of acustomer not to be served by an employee wearing a religious symbol (in this case a headscarf) would not be a legitimate reason.
So, having considered all this, and the potential for a legal challenge if you do implement a ban, why would you want to do this anyway? How business critical is it that you convey an image of “neutrality” to your customers? Is it so important that you wish to try and dictate to your staff what they can and can’t wear? What happens if someone is wearing a headscarf as fashion accessory or for hairloss after chemotherapy, not for any religious reason? How do you distinguish? As we saw last year with the “High Heels” issue, imposing arbitrary and unjustifiable dress codes can lead to a wealth of damaging bad publicity for the companies involved.
And we haven’t even considered the issue of whether this ruling will be binding on the UK after we leave the EU (given that a claim now would probably take more than 2 years to reach the Supreme Court) – I’ll leave that one for legal bloggers and commentators.
As always, remember the two golden rules of Employment Law for small business
1. Don’t believe anything you read about Employment rules in the Daily Mail
2. Just because you can, doesn’t mean you should.
Note: Like everyone else commenting today, I’ve based this post not on a reading of the full legal judgment (which is not available at the time of writing) but on the CJEU press release, which can be found here. Should the full judgment contain anything different, I’ll update this post.