The way we choose to look and dress is seen as a way of expressing our personalities and beliefs. In the UK we have a lot of freedom around what we can wear in public but the issue around workplace dress codes, specifically in reference to religious beliefs, remains a controversial and difficult area to navigate.
The so-called ‘Burkini ban’ imposed in various cities in France recently has forced the issue into the public eye again, causing a furore following viral videos showing local enforcement implementing the ban, so it’s worth revisiting what current employment law says about workplace dress codes and how employers can adapt them to accommodate religious beliefs.
Considering recent case law
Recent case law has unfortunately not given employers the clarity needed, with the Advocate Generals in two European cases giving conflicting opinions on whether a ban imposed by employers on Muslim employees wearing a headscarves was discriminatory.
Samira Achbita and Anors V G4S Secure Solutions NV
In the first case, Ms Achbita was employed by G4S as a receptionist. G4S provide security and guarding services as well as reception services to various customers from the public and private sectors. Initially, it was an unwritten rule that employees should not wear any religious, political or philosophical symbols whilst on duty before becoming part of the employer code of conduct from 2006, which stated: “Employees are prohibited, in the work place, from wearing any visible signs of their political, philosophical or religious beliefs and/or for giving expression to any ritual arising from them.”
Ms Achbita was a Muslim and wore a headscarf exclusively outside of working hours, however, in April 2006 she announced that in future she intended to wear a headscarf during working hours as well, citing religious reasons. The company management pointed out that this was at odds with the neutrality sought by G4S, but when Ms Achbita returned to work following a period of sickness wearing her headscarf, and she was subsequently dismissed.
Ms Achbita brought a claim for damages for wrongful dismissal against G4S and the Belgium Constitutional Court referred the question to the European Court of Justice (ECJ) as to whether it was direct discrimination for a private employer to prohibit a Muslim employee from wearing a headscarf in the workplace.
The Advocate General stated that whilst the employer’s policy did not amount to direct discrimination, as the ban extended to all religious, political and philosophical symbols, it could amount to indirect discrimination. However, even then, the ban may be objectively justified as an occupational requirement, subject to a proportionality assessment based on the size and conspicuousness of the symbol, the nature and context of the employee’s activity and the national identity of the Member State concerned.
In this case the ban affected all employees equally; it was not based on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. Such a policy was a legitimate commercial choice, given the broad range of clients in the public and private sectors to whom the company was providing services. The imposition of the dress code was both appropriate and necessary for achieving this objective, which could not be achieved by alternative means.
Bougnaoui and another v Micropole SA (Case C-188/15)
In the second more recent case, however, the ECJ reached a completely different opinion on similar facts. Ms Bougnaoui, a Muslim woman, worked as a design engineer for Micropole SA. At the time she was recruited, Micropole made it clear that she would not always be able to wear her headscarf as she was in a client-facing role. Following a site visit, a customer made a complaint about Ms Bougnaoui wearing her headscarf and requested that she did not wear it in the future. Ms Bougnaoui refused to comply with the customer’s request and Micropole dismissed her.
Ms Bougnaoui made a claim for religious discrimination and, on appeal, the Court made a referral to the ECJ asking whether religious discrimination could be justified on the basis it was a genuine occupational requirement under Article 4(1) of the Equal Treatment Directive. This provides that a difference of treatment based on a protected characteristic may be lawful where, by reason of the nature of the particular occupational activities concerned and the context in which they are carried out, the characteristic constitutes a genuine and determining occupational requirement.
It was the opinion of Advocate General Sharpston that a workplace ban on employees wearing religious apparel when in contact with customers is direct discrimination on the grounds of religion or belief, the derogation in Article 4(1) did not apply and the treatment could not be justified as a genuine occupational requirement.
Although Ms Bougnaoui was not dismissed because of her religion, she had been dismissed because of the manifestation of her religion. Article 4(1) may only be used in very limited circumstances (for example for health and safety reasons) and cannot be used to justify a total ban. In this case the wearing of a headscarf did not impact detrimentally on the employee carrying out her role as a design engineer.
The Advocate General also considered the question of indirect discrimination. The starting point is that employees have a right to wear religious apparel but the employer may have the right to impose restrictions. For example, it is generally regarded in Western society that eye contact is important for face-to-face communications, so a ban on covering the full face and eyes may be appropriate in certain jobs. It was considered unlikely that Micropole’s requirement to remove the headscarf when in contact with customers would be regarded as proportionate, although this was a question for the national French court.
Impact on employers
Though the conflicting opinions in these cases are not particularly helpful to employers there are some key points that should be highlighted. The Advocate General drew a distinction in Achbita between the faith of an individual and the practice and manifestation of that religion. However, this separation leads to some uncomfortable conclusions. For example, the observation that G4S does not prohibit its employees from practicing their religion but requires only that they refrain from wearing certain items of clothing is somewhat artificial. It implies that the wearing of a headscarf is an option whereas for many Muslims the decision to cover their hair will be based on a religious belief which is intertwined with religious practice. Employers should exercise caution when adopting this approach as it does not take into account that some religions place more emphasis than others on the practice and manifestation of religion and are so less able to comply with a uniform policy.
In Bougnaoui, the Advocate General’s comments signaled a shift in opinion having previously regarded dress codes as indirect discrimination. Under the Directive, there is no general defence of objective justification to a claim of direct religious discrimination and under UK law the ‘defence’ is narrower as it only applies where the employer imposes a requirement to be of a particular religion rather than a requirement related to a religious characteristic. Therefore, if the banning of religious apparel is considered direct discrimination, UK employers would have little or no defence if they decided to implement a dress code.
Both cases will proceed to a final decision by the ECJ, which is not obliged to follow either of the Advocate Generals decisions, so it will be interesting to see whether these decisions can resolve the current tension.
Written by Hannah Robbins, this article first appeared in HRreview in November 2016