Hello and welcome to this week’s case of the week. This week, we will be looking at whether a company policy that requires employees to remove their hijabs is discriminatory. This is an EU law case. We are no longer in the EU, so this law is no longer binding in our courts, but nevertheless it is interesting and may be persuasive to domestic courts.
The challenge was brought by two female Muslim workers. Each had been required by their employer to remove their hijab, because their employers had a policy of presenting a neutral image to clients and customers that required the removal of overtly religious attire.
The two workers alleged:
- The policies were directly discriminatory towards Muslims.
- The policies were indirectly discriminatory towards Muslims, as more Muslims wear overtly religious attire than do other religious groups.
- The policies were indirectly discriminatory towards women, as more women wear overtly religious attire than do men (more Muslim women).
All the claims failed. The Courts of Justice of the European Union found that the workers were not treated less favourably because they were Muslims (claim 1.), but rather because they wore hijabs (which some Muslim women do not).
In terms of claims 2 and 3, the court said that such policies do treat Muslims and women less favourably than individuals who do not possess those characteristics, but that they were “justified by a legitimate aim and the means of achieving that aim were appropriate and necessary.” (The need to present a neutral image to clients and customers and therefore require the removal of any overtly religious symbols).
The court said that the requirement to remove all, even inconspicuous religious symbols, would probably be inappropriate and unnecessary. This means such a measure would be unjustifiable indirect discrimination. Therefore, companies (at least in the EU) cannot mandate the removal of all religious attire, just that which is overt and conspicuous.
Although this is an EU judgment, the UK law is almost directly equivalent. The relevant defence is that a policy must be a “proportionate means of achieving a legitimate aim”. If the matter is litigated, a UK court may come to the same conclusion.