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CJEU: Employers can ban staff from wearing visible religious symbols

Employers can ban staff from wearing visible religious symbols but must have a relevant policy in place before doing so, the Court of Justice of the European Union (CJEU) has said.15 Mar 2017

A company’s wish to project a neutral image using internal rules banning political, philosophical or religious symbols is legitimate, the CJEU, Europe's highest court said.

"An internal rule…which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination," the Court said.

"However, in the absence of such a rule, the willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf cannot be considered an occupational requirement that could rule out discrimination," it said.

The court gave judgments on two cases where women were dismissed from their jobs for refusing to remove headscarves.

The first case involved a receptionist with the Belgian branch of security company G4S. After working for the company for three years, Samira Achbita began wearing a headscarf at work for religious reasons. When she refused to stop doing so, Achbita was fired for breaking what G4S said were unwritten internal rules on wearing any religious symbols.

The Court found that these internal rules cover "any manifestation of such beliefs without distinction".

"It is not evident from the material in the file available to the Court that that internal rule was applied differently to Achbita as compared to other G4S employees. Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive," it said.

The Belgian court must ascertain whether G4S had established a "general and undifferentiated policy" on the issue before dismissing Achbita, the CJEU said.

"In this instance, it is also necessary to ascertain whether the prohibition covers only G4S workers who interact with customers. If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued," it said.

The Belgian court should look into whether it would have been possible to offer Achbita a post that did not involve any visual contact with customers, instead of dismissing her, the CJEU said.

The second case was referred from the French courts. Design engineer Asma Bougnaoui was fired from IT consultancy firm Micropole after a customer complaint. She had been told before taking the role that wearing a headscarf could cause problems with clients.

In this case, the court ruled that any ban on headscarf could not be based on "subjective considerations".

"The willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement," it said.

A French court would have to determine whether the company in this case had dismissed Bougnaoui solely to satisfy the customer or in accordance with an internal ban on religious symbols, the Court ruled.

The judgment confirms an opinion published by advocate general Juliane Kokott on the G4S case in May 2016.

In previous cases where employees have been banned from wearing crucifixes to work, the emphasis has been on the employer having to prove that a ban was necessary. In this case, however, the advocate general accepted that the ban was necessary to implement its policy of neutrality.