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Employers may impose ‘neutral’ dress code if applied equally

Workplace ban on religious symbols could be indirect discrimination if not legitimately justified

14 March 2017

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A workplace rule that bans employees from wearing visible religious symbols need not constitute direct discrimination but may be indirectly discriminatory if it places individuals at a disadvantage, the Court of Justice for the European Union has stated.

Europe’s highest court was providing guidance in response to queries from courts in France and Belgium on whether an internal rule banning the wearing of visible signs of political, philosophical, or religious belief constitutes discrimination.

The court’s ruling follows two claims brought by Muslim women who were dismissed from their employment after wearing Islamic headscarves at work, contrary to their employers’ policies for staff in client-facing roles.

The judges in Luxembourg said such rules did not introduce a difference of treatment that was directly based on religion or belief and, therefore, were not directly discriminatory in accordance with the EU equal treatment directive 2000/78/EC .

However, the court also said there may be indirect discrimination where the internal rule introduces a difference of treatment that is indirectly based on religion or belief that place individuals at a disadvantage.

‘Such a difference of treatment would not amount to indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary,’ said the CJEU.

An employer’s desire to project an image of ‘neutrality’ towards both its customers is legitimate, the ruling continued, notably where the only employees involved work in a customer-facing role and ‘if that policy is genuinely pursued in a consistent and systematic manner’.

The Court of Cassation in Belgium sought guidance following a case brought by Samira Achbita, a Muslim woman who was employed as a receptionist by G4S, which provides reception services for customers in both the public and private sectors.

Ms Achbita was dismissed after insisting on wearing a headscarf contrary to the company’s written policy banning employees from wearing any visible signs of their political, philosophical, or religious beliefs and/or from engaging in any observance of such beliefs in the workplace.

Referring to the case, the CJEU said the internal rule does not introduce a difference of treatment that is directly based on religion or belief and that it was not applied differently to other employees.

The national court must now ascertain whether G4S had, prior to Ms Achbita’s dismissal, established ‘a general and undifferentiated policy’, while also deciding whether the prohibition covered only G4S workers who interact with customers. Where this was the case, the ban must be considered strictly necessary to achieve the aim pursued.

The Brussels-based court should also decide whether G4S could have offered Ms Achbita a post not involving any visual contact with those customers.

The second case was brought by design engineer Asma Bougnaoui, who was dismissed from French firm Micropole after a customer complained that she wore a headscarf.

The Court of Cassation in France sought to clarify the circumstances in which a rule would constitute discrimination and, in the absence of such a rule, whether an employer can take account of a customer’s wish to no longer have services provided by a worker wearing a headscarf.

EU directive 2000/78/EC allows for a difference of treatment where the characteristic at issue constitutes a genuine occupational requirement. The CJEU said such any ban could not be based on ‘subjective considerations’.

‘The willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement,’ the court said.

Misleading headlines

Susan Belgrave, an employment barrister at 7 Bedford Row, told Solicitors Journal that employers which seek to impose restrictions must do so fairly: ‘Such policies must be clearly spelt out and consistently applied. All religious wear must be banned and not simply headscarves and they must consider confining the requirement to customer facing roles only.’

The barrister added that, reacting to the court’s decision, some media outlets had ignored the distinction between direct and indirect discrimination in the directive.

Many of today’s headlines suggested employers can ban their staff from wearing Islamic headscarves but, as Belgrave explained, the employers in both instances were purporting to apply a uniform dress code that was not directly discriminatory against Muslim women who wear headscarves.

Kevin Poulter, partner in the employment team at Child & Child, also highlighted that G4S’s policy did not directly discriminate against employees on the ground of religion because it did not treat one religion less favourably than another.

‘This is where much of the mainstream press stopped short,’ he told the journal. ‘This judgment applies only to direct discrimination, but a company policy which universally disallows the visible manifestation of religious beliefs may be indirectly discriminatory.

‘It will be for the national courts of EU member states to determine whether there is any case of indirect discrimination on a case by case basis. In the current case, this would be that Muslims are placed at a particular disadvantage under the neutrality policy than others.’

The former editor of large at Solicitors Journal added that the judgment does not give employers ‘a free hand’ to dismiss staff who wear headscarves, or other items, as symbols of their religion or belief.

‘Any policy which prevents the wearing of such symbols must be proven to be legitimate for the business and applied fairly and equally across staff,’ he said. ‘Although this is the first “headscarf” case to reach the CJEU, it is unlikely to settle what is an incredibly sensitive issue across Europe and in the UK and further clarification will be required.’

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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