The European Court of Justice (ECJ) recently issued long-awaited decisions on two cases – one from France (Bougnaoui and another v Micropole SA (Case C-188/15)) and one from Belgium (Achbita and another v G4S Secure Solutions NV (Case C-157/15)) – addressing whether an employer can lawfully prohibit women from wearing a hijab at work.

These cases were the first to present claims of religious discrimination under the Equal Treatment Framework Directive to the ECJ. Accordingly, EU employers were eager to learn how the ECJ would handle these issues – not only of law, but also of social policy and politics – in our rapidly changing world.

Interestingly, the ECJ concluded that a ban on Islamic headscarves at work can be lawful but stopped short of saying that a blanket ban is lawful. According to the ECJ, an employer could ban employees from wearing a hijab at work only if the employer could prove that:

• such a measure is appropriate and necessary in the particular circumstances;
• it has a rule prohibiting the wearing of visible signs of political, philosophical or religious belief, which covers all such manifestations of belief without distinction (i.e., it does not single out the hijab or any particular religion); and
• it not only has the rule, but it genuinely pursues it in a consistent and systematic manner and only cover workers who interact with customers.

These decisions form part of a developing line of cases, in UK and other EU member states, which look at the legality of banning wearing of religious symbols at work, including the wearing of a cross. They also come at a time when this is a particularly sensitive topic politically, given the fears about the rise of fundamentalism and recent terrorist attacks in Europe. Several EU states have moved to ban Muslim headwear in public, making this an area of increased scrutiny and heated political debate in several EU states.

Together, the Micropole and G4S Secure Solutions decisions have received a significant amount of attention, both from the press and politicians. Meanwhile, in the UK, the Advisory, Conciliation and Arbitration Service (ACAS) is due to publish a dress code policy in July 2017, which is expected to cover this sensitive topic. Now is a good time for employers – particularly those who operate in global businesses and with diverse workforces – to consider and review their approach to religious symbols at work, and dress codes more broadly.

If you have any questions about this article or any matters in relation to employment law in the UK or EU, please contact Jonathan Maude +44 (0)20 3667 2860 or Esther Langdon +44 (0)20 3667 2863 of the London office or any Vedder Price attorney with whom you have worked.

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