On 13 October, the European Court of Justice ruled, in line with its previous case law, that a neutral dress code in the workplace does not constitute either direct or indirect discrimination based on religion or belief if the employer respects several cumulative conditions.
The background to this ruling was a dispute between an organisation that managed social housing and a Muslim woman who wore a headscarf. The woman applied for an internship, but the organisation did not consider her application because she stated during an interview that she would not take off her headscarf at work. The applicable work rules within the employer organisation contained a neutrality obligation for the employees, including regarding dress code.
The Brussels Labour Court referred a question on the case to the European Court of Justice, which has now ruled on the matter. The Court issued a reminder that for a neutral dress code not to constitute direct discrimination, the employer must be able to demonstrate that the internal rule (i.e. the neutrality obligation) covers any manifestation of such beliefs without distinction. In line with previous European Court of Justice case law, the neutrality obligation must apply to all signs, including smaller ones. It must also treat all employees in the same way by requiring them, in a general and undifferentiated way, to dress neutrally.
The European Court of Justice also issued a reminder that even if neutrality policies may mean a difference in treatment that is indirectly based on religion or belief, the difference in treatment will not constitute indirect discrimination if:
- the internal rule is objectively justified by a legitimate aim; and
- the means of achieving that aim are appropriate and necessary.
In relation to whether there is a ‘legitimate aim’, the European Court of Justice ruled that in relations with both public and private sector customers, the desire to display a policy of political, philosophical or religious neutrality or an employer’s wish to project an image of neutrality towards customers are legitimate aims.
An employer’s wish to project an image of neutrality towards customers is, in principle, legitimate, in particular where the employer only involves workers who are required to come into contact with the employer’s customers in its pursuit of that aim, the Court noted.
The fact that an employer merely expresses its desire to pursue a policy of neutrality, even if it constitutes a legitimate aim, is not sufficient to objectively justify a difference in treatment indirectly based on religion or belief. For the justification to be considered objective, there must be a genuine need on the part of the employer, which it will have to demonstrate. According to the Court’s previous case law, this genuine need can be both a neutral attitude towards customers and the avoidance of social conflict in the workplace.
The European Court of Justice also ruled that religion or belief constitute a single ground of discrimination, covering both religious belief and philosophical and spiritual belief.
For a more detailed discussion of the issues around neutral dress codes and headscarves arising from an earlier European Court of Justice ruling, see here.