An important decision has been handed down in the European Court of Justice (ECJ) relating to the wearing of religious attire/symbols within the workplace.
A Belgian company’s policy to restrict employees from wearing political or religious symbols at work was held not to constitute direct discrimination against a female employee who chose to wear a religious headscarf. In short, direct discrimination is where a person is treated less favourably than another because of a protected characteristic they have.
The ECJ decided that the policy affected all employees and not the particular employee in question. However, the ECJ did comment that the company’s policy could constitute indirect discrimination.
Interestingly, the ECJ said that the restriction upon religious and political attire in client/customer facing roles could be considered a legitimate aim. It would be for national courts to decide whether the restriction/policy was reasonable.
Section 19 of the Equality 2010
The definition of indirect discrimination is set out within section 19 of the Equality Act 2010:
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if—
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
The Principles of Indirect Discrimination
Indirect discrimination is a key component of the Equality Act and protects employees from discriminatory and often outdated workplace policies/cultures.
An example is a company requiring junior members of staff to work hours outside of their contractual obligations. Such practices can affect women with children for example who have childcare needs/provision in place. This would fall under the auspices of the protected characteristic of sex. Employers may consider that an employee who is not perceived as ‘willing to go the extra mile’ is not suitable for promotion opportunities. An unrestricted policy such as this would severely curtail the opportunities of women to advance their career and could lead to a gender imbalance in senior positions within companies.
A further example would include policies requiring all employees to work certain hours/days of the weeks. This sort of policy could prevent employees from carrying out their religious practices; such as requiring employees to work on a Sunday or Friday. Such a policy could adversely affect Jewish and Christian employees whereas it would not affect an atheist employee adversely.
If an employee claims that he has been indirectly discriminated against, employers may have a defence to the claim. This would be on the basis that the discriminatory policy is justified.
The defence is that the policy is a proportionate means of achieving a legitimate aim. An example would be where a company seeks to restrict the salary a new employee will be entitled to be paid. This can constitute age discrimination on the grounds that older prospective employees would more likely have higher salary demands/expectations.