The European Court of Justice has recently considered two cases involving employers who dismissed Muslim employees for refusing to remove their headscarves in the workplace. So what do you need to know and how can you ensure your policies are fair?
In Bougnaoui v Micropole, Ms Bougnaoui was employed in a customer facing role in a French company. After a client complained that Ms Bougnaoui had worn her headscarf during a visit, her employer requested that she refrained from doing so. Ms Bougnaoui refused and was subsequently dismissed.
Direct discrimination occurs where someone is treated less favourably on the grounds of a protected characteristic, such as religion or belief. It includes less favourable treatment arising from the manifestation of religious belief (in this case, wearing a headscarf).
Direct discrimination can only be justified if there is a "genuine and determining" occupational requirement.
The ECJ noted that this rarely applies and does so only when it is objectively dictated by the nature of the activities in question.
For example, a women's refuge could refuse to employ a man on the basis that being female is a requirement arising from the nature of the work.
This could not be said of Ms Bougnaoui. Her work could be done by a woman manifesting her Islamic faith, albeit the client preferred that it wasn't. The removal of her headscarf therefore could not be justified as an occupational requirement.
In a judgment published the same day, the ECJ found that a Belgian company, G4S, had not directly discriminated against a Muslim employee by dismissing her when she refused to stop wearing her headscarf to work.
G4S had an established dress code prohibiting employees from wearing anything that reflected their political, philosophical or religious beliefs. As such, there was no direct discrimination or less favourable treatment. The dress code applied equally to all employees.
Indirect discrimination occurs where a provision, criterion or practice is applied to all employees but places people of a particular protected group at a disadvantage.
Indirect discrimination can be justified where the employer has a legitimate aim and the means taken to achieve that aim are appropriate and necessary.
While the ECJ was not bound to consider indirect discrimination, it commented that:
Not necessarily. These cases originated in Belgium and France.
Both of these jurisdictions have a history of secularism (i.e. separation of state and religious institutions), but the same cannot be said of the UK.
A case involving a UK employer or in UK courts might not find that presenting a neutral image to customers is actually a legitimate aim.
The ECJ's decision in the G4S case sits at odds with its ruling on Eweida v British Airways, where a Christian claimant was prohibited from wearing a cross.
In Eweida, the ECJ considered that BA's desire to project a particular corporate image was a legitimate aim, but one that had to be balanced against the societal importance of pluralism, diversity and the individual importance of being able to manifest one's faith.
The ECJ found that steps taken by BA were disproportionate because:
For UK employers wanting to prevent employees physically demonstrating their religion or belief, the key take away points are:
Even then, such a dress code policy would carry the risk of discrimination claims, as well as having the potential to impact employee satisfaction and morale.
For more information regarding implementing a dress code at work, please speak to a member of our team.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at March 2017. Specific advice should be sought for specific cases. For more information see our terms & conditions.