On 15 July 2021, the ECJ handed down its judgment in two joined cases, both referred by German courts, regarding the wearing of Islamic headscarves or hijabs at work: IX v Wabe eV and MH Müller Handels GmbH v MJ. These cases have been widely reported under headlines stating that European employers can dismiss employees for wearing a headscarf (e.g. France24, Aljazeera, the Times). The judgment has been criticised for fuelling Islamophobia in Europe. Although the judgment does, indeed, allow employers to ban the wearing of hijabs at work, it does so under certain conditions and contains some positive developments in clarifying its previous judgments in headscarf cases (Achbita and Bougnaoui). In this sense, the judgment presents a small indication that the ECJ is moving – even if very slowly – towards more protection of Muslim hijab-wearing employees.
1. The facts
In Wabe, a Muslim employee of a company running a number of nurseries, was asked, when returning from parental leave, to no longer wear a headscarf. During her leave, the company had introduced a neutrality policy prescribing that employees refrain from wearing any visible signs of political, ideological or religious beliefs. The employee refused to remove her headscarf and, after two official warnings, was released from work. The company’s neutrality policy did not apply to employees who did not come into contact with customers. The claimant, IX, challenged this as direct religion or belief discrimination and as discrimination on the grounds of gender and ethnic origin.
Müller concerned a Muslim employee of a company which runs a number of chemist shops. On her return from parental leave, the employee wore a headscarf, which she had not done before. Her employer asked her to remove the headscarf as it was against company rules not to wear any prominent and large-scale signs of religious, philosophical and political convictions. This rule applied to all shops and aimed to preserve neutrality and avoid conflicts between employees. After twice refusing to do so, she received instructions to come to work without the headscarf. The claimant, MJ, also challenged these instructions as discrimination.