16th March 2017
Urgent Warning to Employers: Do not act on the misleading headline "European Court says workplace ban on headscarves can be legal"
We know you are busy but this is one legal update we urge you to read to ensure your business does not fall foul of anti-religion and belief discrimination laws under the UK’s Equality Act 2010.
In the UK it will hardly ever be lawful to ban Muslim women from wearing her headscarf at work. Rare exceptions will be genuine health and safety requirements such as operating machinery or a ban on full face cover where there is the need to communicate, as in the case of the teaching assistant in a primary school. It most certainly will not be lawful to pander to the prejudices of customers who object to being served by a woman wearing a headscarf.
For further guidance and analysis on the controversial topic of dress codes at work do carry on reading the review by my colleague, employment solicitor Daniel Stander.
Employers: Here is the real story on the banning of employees from wearing headscarves
Many of our readers will have been hit with a slew of crude and shocking headlines in recent days declaring that a “Burka ban in the workplace is legal - EU court rules it is NOT discrimination”.
The question as to whether an employer can stop a worker from wearing a religious symbol or fall foul of discrimination laws dovetails with the recent public debate about workplace dress codes and the requirement to wear high heels at work, a subject we have explored in depth previously.
Our message to employers is pause, examine, and let’s reflect on the devil in the detail.
This week, the European Court of Justice (the “ECJ”) made its much awaited first rulings on the issue of headscarves at work.
In Achbita v G4S Secure Solutions NV, the ECJ held that G4S in Belgium had not directly discriminated against a Muslim employee for refusing to allow and subsequently dismissing her for her stated intent to wear a headscarf. The Court found that G4S’s policy, which has been described as a “neutral” policy (more on that to come later) banning the wearing of all political, religious or similar signs was not directly discriminatory as it prohibited all religious signs, and thus was not treating one religion less favourably than other.
Although it was not asked to determine on whether the policy constituted indirect discrimination, the Court decided to address it in any case. It found that G4S’s policy introduced a difference in treatment indirectly based on religion, which places Muslims at a particular disadvantage. Given the disadvantage, the Court went on to consider whether the means adopted by G4S of achieving the religious neutrality was appropriate and necessary. (Under the UK Equality Act 2010 we would be asking if an employer can show that the policy is a “proportionate means of achieving a legitimate aim”.) The ECJ stated that an employer’s wish to promote a neutral image was a legitimate aim so long as it applied only to customer facing roles. Further, it encouraged the Belgian court to consider whether it would have been an option to find a suitable alternative role for the employee rather than dismissing her.
In the supplementary case of Bougnaoui and Anor v Micropole SA, Ms Bougnaoui lost her job after she complained to her employer that she was wearing a headscarf. The ECJ ruled that an employer who takes into account the wishes of a customer’s desire not to be served by an employee wearing a headscarf, which is not a “genuine and determining occupational requirement” and cannot be justified. The case will be sent back to a French court to adjudicate whether the employee was singled out to satisfy a customer’s wish or in accordance with a wider policy on prohibiting religious symbols.
Let us unpack this case law. We are left in a situation where the highest court in the European Union (an organisation which has been on the tips of tongues of many a British citizen this past year) has decided that it cannot be direct discrimination to require its employees to abstain from wearing any political, philosophical or religious symbols at work. For our purposes, because this policy does not draw distinctions between religions it has been labelled as a “neutral” policy. There lies the rub.
Readers should take a moment to reflect on what this really means. Remember above the Belgian court in Achbita will be tasked on examining whether she could have been assigned to a non-customer facing role instead of being dismissed. Is it really “neutral” for an employer to be able to move a Muslim employee out of sight, or a Jew with a skullcap or the Sikh who wears a turban? It is one thing if an employer bans headscarves or the like if it can establish that to do so would be impractical or dangerous for health and safety reasons. It something altogether more disturbing, to kowtow to customer’s wishes and move people who are adorned with a religious symbol of any kind into the shadows.
What we should not forget is that this country has a very different approach to equality compared to some of its European friends. Britain is an expressly Christian nation whereas Belgium and France are officially secular. Although these states embrace the notion of “neutrality” in the workplace, there is scope for debate in this area and as a non-secular nation state, Britain’s employment law regime has the opportunity to forge its own path on the question of religious symbols at work.
To that end, the Court in Achbita set out the following factors to be taken into account when deciding whether such discrimination may be justified:
- the size and conspicuousness of the religious symbol,
- the nature of the employee's activity,
- the context in which she has to perform that activity, and
- the national identity of the Member State concerned
There we have it; our national identity as a non-secular nation which doesn’t hold the cultural meaning of “neutrality” in the same esteem as our European neighbors means as employers, we re-state our recommendations for best practice in the workplace to avoid being on the wrong end of a discrimination claim:-
Recommended steps for employers:
It is safe and indeed highly recommended to have a dress code promoting a positive and professional image providing it:
Respect the needs of men and women from all cultures and religions;
- Makes any adjustments that may be needed because of disability;
- Takes account of health and safety requirements; and
- Helps staff and managers decide what clothing is appropriate to wear to work
We would urge our employer clients to practice caution when drawing up dress code policies as an attempt to introduce a French/Belgian style neutral policy would attract legal challenges given the UK’s progressive societal values and norms.
Article written by Daniel Stander, Employment Solicitor.
To find out more information about discrimination law, click here.
Please contact our employment solicitors on 0808 168 5550 or on firstname.lastname@example.org to discuss how these issues might affect you or your business.