Much has been made of the European Court of Justice case of IX v Wabe. This related to a German business which provided special needs care in a day centre setting. The employee concerned was Muslim and sometimes wore a headscarf to work. The employer had a rule prohibiting a visible sign of religious or political belief as they wished to display neutrality in such matters. Eventually the employee was sent home. When the matter reached the European Court of Justice it took the view that if there was a policy applied equally to all regardless of their religion, political or philosophical belief then that could not amount to direct discrimination. That is not in itself surprising as if it had decided the other way, as there is no defence to direct discrimination, any employer who prohibited the displaying of political or religious symbols in the workplace would automatically lose a discrimination claim.
Having decided that the employer’s approach was not direct discrimination there was also a need to consider whether it could have been indirect discrimination. Whilst direct discrimination occurs when someone is treated differently because of their protected characteristic, e.g. their religion or their race, indirect discrimination is a more difficult concept. This applies when a policy, criterion or practice is applied by an employer which on the face of it applies to everyone equally. However, this may be discriminatory if it places particular groups at a disadvantage. For example in this case Muslims would have been at a disadvantage because of the requirement through their religion to wear a headscarf, if female. With indirect discrimination though there is a potential defence of justification. The European Court of Justice thought that in theory the defence could succeed, but employers could not bring in such a policy just because they wished to. There had to be a genuine need for the policy and it had to be introduced in a proportionate way i.e. in such a way as to disadvantage those with the relevant protected characteristics as little as possible or not at all.
The case attracted headlines in the UK and indeed our Nigel Tillott appeared on the GB News channel, because the UK has now left the European Union and decisions of the European Court of Justice are not binding on the UK anymore. They are however still of ‘influential value’. In this situation though it doesn’t appear that there is any difference between the approach which the European Court of Justice took and the approach which would be taken in this country.