Dress codes and headscarves

Dress codes and religious clothing have been considered by the European Court of Justice (CJEU) in two cases recently and unfortunately their guidance is not as clear as it could be. The French case of Achbita v G4S Secure Solutions was reported as supporting a ban on headscarves but the actual outcome was slightly more complicated than that. The Belgian case of Bougnaoui v Micropole SA reached a slightly different decision, refusing to uphold a ban, but the case emphasised just how hard it can be to enforce a supposedly neutral dress code.

Achbita v G4S Secure Solutions (2017)

Ms Achbita had worked for G4S as a receptionist for 3 years. G4S had an unwritten rule that workers should not wear any visible signs of their political, philosophical or religious beliefs whilst at work. Shortly after she notified them that she would wear a headscarf at work, G4S changed their workplace rules and added a rule prohibiting workers from wearing any such religious clothing. Ms Achbita wore her headscarf to work, and she was dismissed. She brought a claim before the Belgian labour courts, who referred the matter to the CJEU. The CJEU considered both direct and indirect discrimination.

• Direct discrimination occurs when an employer treats a worker less favourably than others because of their religion (or other ‘protected characteristic’).
• Indirect discrimination occurs when an employer applies an apparently neutral rule (a ‘provision, criterion or practice’) to all employees but that rule puts a group (including the claimant) at a particular disadvantage because of their religion. Unlike direct discrimination, an employer can defend a claim of indirect discrimination if they can show that the rule is justified – that it was a proportionate means of achieving a legitimate aim.

The CJEU concluded that the ban did not amount to direct discrimination because the employee had been treated in the same way as all of her colleagues – all were required to dress ‘neutrally’.

The CJEU held that the rule could be justified as far as indirect discrimination was concerned if G4S could show that the rule was an ‘appropriate and necessary means’ of achieving a legitimate aim (which is slightly different to the wording used in the UK where it must be a ‘proportionate means’). The CJEU accepted that presenting a neutral position to the public could be legitimate aim, and that the means had been appropriate because they applied equally to all employees. That left the question of whether or not it was necessary, and the CJEU said that this was something for the Belgian labour court to consider.

The relevant issues were:-

• Whether the rule applied only to those employees who deal with the public.
• If so, whether the employer had any other roles for the employee.

Bougnaoui v Micropole SA (2017)

Ms Bougnaoui was employed by Micropole as a IT design engineer. She wore a headscarf or veil at work and when visiting client sites. One customer complained, and she was asked to remove her headscarf. She refused and was subsequently dismissed. Again, the employer sought to justify this on the grounds of ‘neutrality’. She brought a claim before the French labour courts. This was also referred to the CJEU, which considered both direct and indirect discrimination.

• For direct discrimination, if the wishes of a customer not to have the services delivered by a design engineer in an Islamic headscarf were a genuine occupational requirement, then the employer’s response would not amount to discrimination.
• For indirect discrimination, the same principles as those considered in Achbita would apply.

As far as the genuine occupational requirement was concerned, the CJEU noted that a characteristic (in this case, the headscarf) can only amount to a requirement because of the nature of the activities or the context in which they are carried out. It must be objectively dictated by the nature of the work itself, not subjective considerations such as the willingness of the employer to take into account the wishes of a customer. These views could not amount to a genuine occupational requirement. It was then for the French court to decide whether it amounted to indirect discrimination.

Conclusion

Although some of the reports on Achbita suggested that a ban on headscarves, or other religious clothing or jewellery, had been upheld, in fact it made it clear that in certain limits would apply. However, this case did clarify the issues, particularly in relation to indirect discrimination. If an employer has a rule that would prohibit religious clothing, then it is essential to consider the context of the rule and whether or not it is, for example, a customer-facing role. If an employer believes that what an employee chooses to wear is incompatible with their duties, they would have to consider redeployment.

In Bougnaoui, it was clearly going to be difficult for her employer to justify the rule on the basis that it was a requirement of Ms Bougnaoui’s duties that she could not wear a headscarf because a client preferred her not to. The laws protecting workers from discrimination would be undermined if what would otherwise be discriminatory could be excused because of customer complaints, and it is difficult to see how an IT engineer’s ability to carry out their work is affected by what they wear on their head.

Where does that leave employers? Firstly, indirect discrimination is more likely to be an issue for employers than direct discrimination. Employers rarely ban religious clothing because of a person’s belief. In practice, it is a general rule based on a particular business need. In each case, an employer should consider whether the rule is necessary, how it will impact on different groups of employees, and what steps if any can be taken to avoid putting them at a particular disadvantage (including, if possible, redeployment). Only if there is no reasonable alternative should they consider disciplinary action or dismissal.

In healthcare, where workers are in contact with patients or carry out clinical duties it is easier to justify restrictions on what they can and can’t wear for reasons of hygiene and infection control. A dress code may have to have different requirements for different types of staff. Employers may have particular rules for public or customer-facing roles, in order to present a neutral or corporate image. If a discrimination claim is brought, a tribunal may expect to see evidence to justify the rule, and to understand what steps the employer took to consult with their staff on the rule, the reasons behind it, and any possible alternatives. It is possible to restrict what employees wear (and avoid discrimination claims) if the rules are essential to their work and properly introduced and enforced.