Religious Dress in the Workplace
Whatever you might have read elsewhere, the Court of Justice for the European Union has categorically not ruled that employers are allowed to ban the wearing of Islamic headscarves in the workplace. But what the Court does say in the case of Achbita v G4S Secure Solutions NV is controversial enough. The employer was a contracting company operating in Belgium and Ms Achbita was employed as a receptionist working for its clients. She is a Muslim, but for three years complied with an unwritten rule that employees should not wear visible signs of their religious, philosophical or political beliefs in the workplace. Back in 2006, however, she informed her employer that she would be coming into work wearing a headscarf. The employer adopted the formerly unwritten rule into its workplace regulations and dismissed her.
She claimed discrimination in the Belgian courts and eventually the case was referred to the Court of Justice for the European Union, asking whether the rule adopted by the employer amounted to direct discrimination on the grounds of religion or belief.
The Court held that it did not. The rule in question applied to all religious political or philosophical beliefs without distinction and there was no evidence that the rule had been applied any differently to employees with different beliefs from Ms Achbita. The rule treated all employees the same way and did not directly discriminate against on the basis of her particular beliefs. It is important to stress here that the Court’s ruling was based entirely on the understanding that the employer would also have dismissed a Sikh employee who wore a turban, a Jewish employee wearing a skullcap or a Christian employee wearing a cross or crucifix.
Leaving direct discrimination aside, however, the Court considered whether the employer’s rule could amount to indirect discrimination. This occurs when a rule or practice causes a particular disadvantage to a group sharing a protected characteristic (such as religion). The Court accepted that the rule banning the wearing of any religious dress could amount to indirect discrimination and went on to give guidance as to whether the employer could show that any indirect discrimination was justified. That depended on whether the employer was pursuing a legitimate aim and whether the rule was an appropriate and necessary (in the UK we would say ‘proportionate’) means of achieving that aim. The Court was of the view that the employer’s policy of projecting an image of neutrality towards customers and clients was clearly legitimate and that a dress code for employees was an appropriate measure to adopt to implement that policy. As to whether the dismissal of Ms Achbita was a necessary means of achieving the employer’s aim, that would depend on whether there were other non-customer facing roles that she could be moved to. These were matters for the Belgian court to determine.
Employers in the UK would be well advised not to place too much weight on this aspect of the Court’s reasoning. The employer’s policy of ‘neutrality’ – leaving aside any questions as to just how neutral it really was – is unlikely to find the same
resonance with an employment tribunal as it did with the Court of Justice for the European Union. The UK’s approach to equality is much more based on celebrating diversity than maintaining an appearance of neutrality and any employer seeking to ban religious dress in the workplace is likely to face an uphill battle in showing practical business reasons why such a rule is needed.
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