Workplace headscarf ban is ‘non-discriminatory’, rules ECJ – but HR professionals warn of the need for ‘caution’

The European Court of Justice has finally ruled that a Belgian employer who advised a muslim employee that she could not wear a headscarf to work was not discriminating against her religion.

The claimant,  Ms Achbita, had sought legal redress after her employer,  G4S Secure Solutions NV, told her that wearing a headscarf would contravene its rules on neutrality when in the company of customers and subsequently amended its dress code to the effect that employees were not permitted to wear any visible symbols connected to political, philosophical or religious beliefs.

 

Juliane Kokott, Advocate General to the European Court of Justice, said:

“While an employee cannot ‘leave’ their sex, skin colour, ethnicity, sexual orientation, age or disability at the door upon entering their employer’s premises, they may be expected to moderate the exercise of their religion in the workplace. Such a ban may be justified if it enables the employer to pursue the legitimate policy of ensuring religious and ideological neutrality.”

However, following comments made during the ruling, leading HR professionals have today stressed the need for employers to exercise caution when putting such a policy in place.

 

Alan Price, Employment Law Director of Peninsula warns:

“The Court indicated that such a policy could still be discriminatory if not drafted and implemented with caution.

 

“Employers with a dress code aimed at ensuring neutrality must, therefore, be sure that the policy applies to all employees within an organisation and avoid singling out people of a particular religion for different treatment etc. If the effect of a policy was to treat some employees differently from others based on their religion, this is likely to make a dress code based on neutrality a discriminatory one.

 

“The reason behind a blanket ban on political, philosophical or religious manifestations through dress is also a key element when deciding whether the policy is indirectly discriminatory. In this case, the aim of the employer to project an image of neutrality when in the company of customers was considered to be legitimate. A desire simply to project a corporate image may, on the other hand, not be considered a legitimate aim.”

 

“The Court was also clear, however, in its message that the neutrality policy must be that of the employer itself – relying simply upon the wishes of a customer not to come into contact with employees who wore items of religious clothing as a reason for a ban would not be sufficient to defend a claim of discrimination.”

 

Garry Pike, Associate at national law firm Bond Dickinson LLP said:

“Ms Achbita brought a discrimination claim against the company, following her dismissal for breaching the company’s internal policy, which required employees to dress ‘neutrally’ and prohibited employees in customer-facing roles from wearing any political, philosophical or religious symbols.  The Court found that the company’s policy was not directly discriminatory against Ms Achbita, as it applied to all of its employees in customer facing roles and covered any manifestation of political, philosophical or religious beliefs without distinction. 

 

“The Court was not asked to consider whether such a policy was indirectly discriminatory (ie whether it put employees from a particular religious background at a disadvantage).  The Court commented that a policy of this type might be indirectly discriminatory, but that it might also be justifiable if the aim behind the policy was legitimate (such as a policy of neutrality) and proportionately applied.”

 

“The outcome of this case and the jointly-heard case of Bougnaoui v Micropole (a case with similar facts, which was referred back to the French national courts for judgment) has been eagerly anticipated, as the preliminary opinions given by the Court’s Advocate-Generals gave differing views as to whether an employment policy of this type constituted direct discrimination.  This outcome will be a relief to employers who have dress codes with restrictions on wearing religious dress or symbols, although it remains important to ensure that policies of this type are proportionate and have a legitimate aim behind them.”

 

Emma O’Leary, employment law consultant for the ELAS Group, says:

“Religion is one of the protected characteristics under the Equality Act however this ruling shows that companies can require their employees to restrict the wearing of religious symbols in the workplace. Whether this is a headscarf, cross or yarmulke it’s vital that any employers who wish to do this ensure that they impose a blanket ban on all religious symbols, rather than one which discriminates against any one religion.

 

“In Northern Ireland this has been a widely accepted practice for some time to avoid conflict between the different community backgrounds and, whilst the ECJ accepted the policy could indirectly discriminate against Islam over other religions, in referring the case back to the relevant Belgian Court it concluded that companies should be allowed to prohibit headscarves as long as there is a general ban on all other symbols.

 

“This case is helpful in clarifying the point and is an extension of last week’s news regarding female attire at work.  If a company has a clear dress/appearance policy that is neutral in terms of gender, religion, politics etc. then it is likely to be acceptable if applied to all employees.”

 

Alan Price added:

“The Court also suggested that employers may need to look at ways to accommodate employees who still wish to wear religious items of clothing at work, for example, moving them to another role which did not involve contact with customers.”

 

 

 

 

Author: Editorial Team

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