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Dress codes and religious belief - what employers need to know

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?

Dismissing an employee for failing to remove a headscarf can be direct discrimination

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.

But it won't always be direct discrimination!

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:

  • The desire to present political, philosophical or religious neutrality to customers constituted a legitimate aim;
  • Provided that the dress code was applied consistently, the means taken were appropriate to achieve the aim of neutrality;
  • However, the dress code would only be necessary to achieving that aim if it applied solely to those in customer facing roles.
  • The ECJ suggested that G4S should have considered moving the employee to a non-customer facing role before considering dismissal.

So is a prohibition on headscarves permissible, if the employer has a dress code prohibiting any physical manifestations of belief?

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:

  • Ms Eweida's cross was discrete in nature; 
  • wearing the cross did not significantly impact on the rights of others; and 
  • there was a lack of evidence that other employees wearing clothing manifesting their religious beliefs adversely affected BA's corporate image.

Conclusion

For UK employers wanting to prevent employees physically demonstrating their religion or belief, the key take away points are:

  • a dress code policy must apply to manifestations of any religious belief and must be applied consistently or it will be directly discriminatory; and
  • Employers relying on 'corporate image' as their legitimate aim may only apply their dress code to those in customer facing roles, and should consider moving those wishing to manifest their faith to non-customer facing roles.

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.

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