When is a ban on headscarves at work discriminatory?

Dress codes and appearance policies have been in the spotlight recently in a different context, triggered by the case of a female temporary worker sent home without pay for failing to comply with a dress code which required her to wear high heels. The ECJ’s ruling comes “hot on the heels” of the furore surrounding a parliamentary committee report highlighting how discriminatory dress codes are still widespread in the workplace.

Background

The EU Equal Treatment Framework Directive establishes a general framework for equal treatment in employment and prohibits direct and indirect discrimination on several grounds, including religion or belief. The Equality Act 2010 implements in Great Britain the principle of equal treatment as set out in the Directive.

A rule or dress code that targets a specific religious group, such as a ban on Sikhs wearing turbans, would be direct discrimination. A more neutral dress code which applies equally to all employees may have an indirectly discriminatory effect on those who wish to wear religious clothing or symbols at work. For example, a general ban on wearing religious clothing will have a special impact on those whose religious beliefs require them to wear particular items.

While direct discrimination can only be justified in very limited circumstances, employers can objectively justify indirect discrimination by showing they have a legitimate aim and have acted proportionately.

In Achbita v G4S Secure Solutions NV, a Belgian court referred a question to the ECJ as to whether the dismissal of a Muslim employee for refusing to remove her headscarf was direct discrimination. Ms Achbita worked for G4S as a receptionist and began wearing a headscarf to work. The company had a dress code which prohibited staff from wearing “any visible signs of their political, philosophical or religious beliefs”. Ms Achbita was dismissed when she refused to comply with these rules.

In Bougnaoui v Micropole SA, Ms Bougnaoui worked for Micropole as a design engineer and wore a headscarf at work. A client complained to her employer about the fact she had worn a “veil” on their site and this had embarrassed some of its employees, asking that there should be “no veil next time”. Micropole asked Ms Bougnaoui to comply with the principle of “necessary neutrality” by agreeing not to wear her headscarf on client sites. She was dismissed for refusing to do so. A French court asked the ECJ whether taking account of customer wishes in this way could amount to a “genuine and determining occupational requirement” and thereby justify any direct discrimination.

Direct and indirect discrimination

In Achbita, the ECJ noted that the company rule prohibited the wearing of visible signs of political, philosophical or religious belief and applied to all such manifestations of belief without distinction. The ECJ found that the ban was neutral and applied to all employees in the same way by requiring them to dress neutrally and, accordingly, was not directly discriminatory on the ground of religion or belief. There was no evidence that the individual was treated any differently to any other employee.

The ECJ noted, however, that the rule could give rise to indirect discrimination, although this might be objectively justified. The ECJ gave some guidance on how the issue of justification should be approached. It said that the employer’s desire to project an image of neutrality in relations with customers could be a legitimate aim, and would be considered appropriate and necessary provided it was genuinely applied in a consistent and systematic manner and only covered customer-facing employees. The ECJ left open the question as to whether the employer should have offered Ms Achbita a non-customer-facing role instead of dismissing her.

In Bougnaoui, it was not clear whether the employer operated a similarly neutral policy as in Achbita. Nonetheless, the ECJ held that if there was no such general rule and the employer dismissed the employee in response to a customer’s objection to an employee wearing a headscarf, that treatment would be direct discrimination and the “genuine and determining occupational requirement” provisions in the Directive could not be relied on to defend such a claim. The ECJ made clear that those provisions only apply in very limited circumstances where the requirement related to religion is objectively dictated by the nature of the occupational activities concerned or the context in which they are carried out. They do not cover subjective considerations such as customer wishes.

Implications

In the UK, a general ban on religious clothing or symbols would generally be regarded as an issue of indirect discrimination because it is not targeted at a particular group. Had the ECJ decided that this is actually direct discrimination, it would have been much more difficult for employers to justify: only the limited exception of a genuine and determining occupational requirement could be used. This is a much narrower test than that for objective justification for indirect discrimination and would usually only apply to characteristics that are essential to a role, such as recruiting a Christian as the chief executive of a Christian charity. The exception is unlikely to apply to policies based on the employer’s business needs.

A key focus of the ECJ’s decision is the concept of “neutrality”. Principles of secularism and neutrality have a particular significance in a number of EU jurisdictions, including France and Belgium. The UK does not, however, have a principle of secularism. Rather, the existence of an established state religion (the Church of England) leads to more of a principle of religious tolerance and freedom, as opposed to strict neutrality. Accordingly, UK courts and tribunals have tended to look for a compelling justification from employers in similar cases, based on reasons such as health and safety or the ability to communicate, rather than the employer’s image. For example, in one case it was found to be unlawful indirect discrimination to require a hair stylist to remove her headscarf so that her hair was on show to customers. Arguments such as in Bougnaoui, that customers do not like seeing religious clothing, are likely to carry much less weight in the UK courts.

The central issue in most cases will be justification – whether the employer had a legitimate aim and whether the ban was proportionate. Courts and tribunals in the UK would most likely have found that both of these cases involved unjustified indirect discrimination against Muslim employees. Employers need to ensure a balance between the reason for any dress code and the disadvantage likely to be suffered by an employee. Managers should continue to consider their dress code or appearance policies carefully and treat employees’ requests to circumvent a rule for religious reasons sensitively and respectfully.