Neutral dress codes and religious discrimination
The Court of Justice of the European Union (CJEU) has recently held in the conjoined cases of Bougnaoui v Micropole Univers and Achbita and another v G4S Security Systems that the prohibition on employees from wearing outward signs of political, philosophical or religious belief will not be discriminatory under the EU Employment Equality Directive.
This is subject to the proviso that the ban is based on a general company rule which prohibits political, philosophical and religious symbols from being worn visibly in the workplace, and not on stereotypes or prejudices against one or more religions or against religious beliefs in general.
Interestingly the two cases had different outcomes when they were considered by two different Advocate Generals before they reached the CJEU, so the court's decision has provided some welcome clarity on the matter.
Request to remove headscarf amounted to unlawful direct discrimination
In Bougnaoui, a design engineer was sent by her employer to clients. A customer complained that the veil she wore "embarrassed" a number of its employees and asked that this did not happen again. Mrs Bougnaoui's employer discussed this with her and asked her to observe a principle of "neutrality" in relation to her dress when dealing with clients. She refused and, as a result, was dismissed.
She brought a claim for discrimination and France's Court of Cassation referred the issue to the CJEU, asking if the wish of a customer no longer to have the services of the company provided by an employee wearing an Islamic headscarf will constitute a genuine and determining occupational requirement under Article 4(1) of the Equality Directive.
The Advocate General concluded that a company policy requiring an employee to remove her Islamic headscarf when in contact with clients, constituted unlawful direct discrimination. In the Advocate General's view the requirement was not a genuine occupational requirement. Although the freedom to conduct a business is a principle of EU law it is subject to, amongst other things, the need to protect the rights and freedoms of others. The Advocate General considered that although a neutral dress code policy might be in the interests of the employer's business and, therefore, constitute a legitimate aim, it was difficult to see in this case, how the employer's prohibition could be regarded as proportionate.
Neutral dress code lawful
The Opinion in Bougnaoui was in direct conflict with the Advocate General Opinion in Achbita. In Achbita, a Muslim receptionist who was contracted out to work for a third party informed her employer, G4S, that she was going to begin wearing a headscarf in the workplace. G4S informed her that the wearing of any visible symbols was contrary to its "strict neutrality" rule in the workplace. The receptionist was dismissed as a result of her refusal to go to work without a headscarf.
She brought a discrimination claim and Belgium's labour appeal court sought guidance from the CJEU on whether or not a rule forbidding all staff from wearing any visible political or religious symbols could lead to direct discrimination against Muslims who wish to wear a headscarf at work.
In Achbita a ban on wearing Islamic headscarves was held to be a genuine and determining occupational requirement and the employer's adherence to a neutral dress code was held to be both legitimate and proportionate. In the Advocate General's view the ban was appropriate as a way of implementing a legitimate corporate policy of neutrality.
The CJEU has agreed with the Opinion in Achbita that the prohibition on wearing a headscarf where the employer's rule prohibits all employees from wearing outward signs of political, philosophical or religious belief will not constitute direct discrimination under the EU Employment Equality Directive.
Good practice points
Employers will be reassured that neutral dress code policies will be lawful, provided that any ban on political, philosophical and religious symbols worn in the workplace is based on a general company rule, rather than on stereotypes or prejudices.
An individual's right to manifest their religious beliefs under the European Convention on Human Rights should, however, also be taken into account. An interference with this right was demonstrated in Eweida and others v United Kingdom where the UK was held to have failed to protect Ms Eweida's right to wear a discrete cross outside her uniform. Interestingly this failure did not extend to Mrs Chaplin, a nurse who wished to wear a crucifix at work, on the basis that her employer's restrictions were in place to protect the health and safety of nurses and patients and so were not disproportionate.
While neutral dress codes may have been given the all clear, there is still the possibility that individuals will rely on Eweida to bring a claim that their employer has interfered with their right to manifest their religious beliefs. As a matter of good practice employers should ensure that they avoid dress codes that restrict an employee's right to wear things associated with their religious beliefs. If there is a prohibition within a dress code then it will be up to employers to ensure that the balance between the reason for the prohibition and the disadvantage to the employee is properly considered.