Dress codes, headscarves and discrimination

The issue of dress codes and religious clothing has featured in the news recently, following the case brought be a Belgian receptionist in Achbita v G4S Secure Solutions. The case was reported as supporting a ban on headscarves, but the actual outcome was slightly more complicated than that.

Ms Achbita had worked for G4S as a receptionist for three years. The company had an unwritten rule that workers should not wear any visible signs of their political, philosophical or religious beliefs whilst at work.  She decided that she intended to wear a headscarf at work.  Shortly afterwards, G4S changed the workplace rules to prohibit workers from wearing any such signs, or from otherwise observing their beliefs. Ms Achbita was dismissed, and brought a claim to the Belgian labour courts. As the case turned on the interpretation of a European Directive on discrimination, the case was referred to the European Court of Justice (CJEU) to provide their interpretation of the law on discrimination.

• Discrimination depends on an individual having a ‘protected characteristic’ such as sex, disability, or as in this case, religion. 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.

Indirect discrimination occurs when an employer applies an apparently neutral rule (a ‘provision, criterion or practice’) which puts someone at a disadvantage because of their religion. However, unlike direct discrimination, an employer can defend a claim of indirect discrimination if they can show that the rule is justified.

The CJEU concluded that G4S’s rule did not amount to direct discrimination because the employee had been treated in the same way as all of her colleagues. They were all required to dress neutrally.

As for indirect discrimination, the rule could be justified if G4S could show that the rule was an appropriate and necessary means of achieving a legitimate aim (the test is slightly different in England and Wales, where it must be a ‘proportionate means’ of achieving a legitimate aim). The CJEU decided that displaying a neutral position was a legitimate aim, and that the means had been appropriate because they applied equally to all employees.  As to whether it was necessary, the CJEU said that the Belgian labour court would need to consider

• Whether the rule applied only to those customers who dealt with the public.
• If so, they would then have to look at whether the company had any other roles they could offer her.

What does the decision mean?

This decision does not mean that a ban on headscarves, or other religious clothing or jewellery, could not be discriminatory, and in fact it made it clear that in certain circumstances it would. However, it has clarified issues and, in particular, how employers can avoid discriminating against their staff on the basis of their religious beliefs. In particular, it looked at the context of the rule and took into account Ms Achbita’s customer-facing role.

Employers should also consider what else they can do, or what they might need to justify before a tribunal.

In Azmi v Kirklees Metropolitan Borough Council, a teaching assistant wore a veil. The school could show that they had consulted with staff and experts, and they could show that the assistant would have more difficulty in communicating with the children as a result. On this basis the ban was upheld.

Dress codes are introduced for a number of reasons and, in the dental and healthcare setting, they often distinguish between staff in clinical areas and those staff dealing with the public more generally. Where staff come into 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.  Where this is not a consideration the purpose of the restriction has to be clear. As a result, it is worthwhile considering different requirements for different staff – safe and hygienic for clinical staff, professional and neutral for customer-facing staff.

The most common types of discrimination claims are on grounds of sex or of religion and belief. Employers should ensure that their rules are broadly similar for staff, irrespective of their gender, and are applied fairly and consistently. They should also consider any objections that staff may have on religious grounds and ask firstly, whether the rule is necessary, and if so, what else they could do to solve the problem.  Only if there is no reasonable alternative should they consider disciplinary action or dismissal.