Recruiters urged to secure indemnity from clients to protect against discrimination claims
Recruiters have been urged to secure an indemnity from clients protecting them from prosecution against discrimination claims following a landmark ruling from the European Court of Justice (ECJ) today.
The ruling stems from the case of a receptionist fired for wearing a headscarf to work at security company G4S in Belgium.
The BBC reports the ruling means employers are now entitled to ban workers from the "visible wearing of any political, philosophical or religious sign”, including headscarves.
However, the ban must be based on internal company rules requiring all employees to "dress neutrally", and cannot be based on the wishes of a customer.
Commenting on the ruling, Christopher Tutton, partner at law firm Constantine Law, told Recruiter the ECJ’s decision puts recruiters in a “difficult” position.
“They would want to have very clear guidance from their clients about their dress code policies, in particular what is permitted in terms of religious signs or dress. And if they are in a position to do so, they should really try and get an indemnity or some kind of protection from claims that arise from candidates that are rejected because they would require under their religious beliefs to wear the hijab or a burka or a headscarf.”
Tutton added that while Prime Minister Theresa May is set to enact Article 50 – the process for beginning talks with European Union partners on Brexit – ECJ rules will still apply in the UK for at least three years. And while it remains unclear whether the UK government will still be bound by ECJ legislation long term, the prime minister has committed to leaving discrimination law unchanged, he added.
Also commenting on the case Nick Elwell-Sutton, employment partner at law firm Clyde & Co, says the judgement demonstrates how critical it is for firms to have a well-documented policy and to apply it consistently across the workforce.
“What a business cannot do is make up the rules in retrospect to try and justify its position. In respect of the indirect discrimination claim, the court was clear that pressure from a customer whose preference was not to deal with an employee of a particular religion will not amount to justification. Again this shows that the court will give short shrift to intolerant attitudes, whether by customers or other employees.”
