Employers will be well aware that banning religious dress at work risks religious discrimination claims.
Do recent EU decisions change this?
The first two cases on religious dress have now been decided by the European Court of Justice (ECJ).
The facts of the cases
In both cases, employees were dismissed for refusing to remove an Islamic headscarf which covered the head and neck, but not the face.
In the French case of Bougnaoui, a customer objected to Ms Bougnaoui wearing a headscarf. Her employer instructed her not to wear it, and when she refused to comply, she was dismissed.
In the Belgian case of Achbita, the employer banned the wearing of visible signs of political, philosophical or religious beliefs in the workplace.
The ECJ decisions
The ECJ held that:
- Bougnaoui was ‘direct’ discrimination, meaning there was no scope for the employer to justify it.
- Achbita was not direct discrimination, as the ban covered all religious, political and philosophical symbols, without singling out any particular religion. However, the ban could amount to ‘indirect’ discrimination if, in practice, it meant that those of a particular religion or belief were at a particular disadvantage. Importantly, indirect discrimination can be justified if it is a proportionate way of achieving a legitimate business aim.
It was for the Belgian court in Achbita, rather than the ECJ, to decide if the policy was in fact indirectly discriminatory and, if so, whether it was justified. But the ECJ gave guidance on relevant considerations:
- An employer’s desire to project a policy of political, philosophical or religious neutrality in relations with customers must be a legitimate aim, so long as only customer-facing workers are involved.
- Was the ban genuinely pursued in a consistent and systematic manner? Or was there evidence that the employer had taken a more conciliatory approach towards employees of different religions / beliefs who refused to comply with the ban?
- Could Ms Achbita have been moved to a non-customer-facing role, rather than dismissing her? The ECJ noted that this should be considered in light of the inherent constraints on the employer, and without requiring the employer to take on an additional burden.
Why the different outcome in these cases?
In Bougnaoui, the employer was simply reacting to a customer’s objections to the headscarf; there was no evidence that it had a policy of neutral dress which affected employees of all religions and beliefs (as there was in Achbita). The ECJ made clear that if the employer in Bougnaoui did in fact have such a policy, that case should be decided in the same way as Achbita.
What is the right approach for employers?
Employers are left in the very difficult position of navigating quite where the courts will draw the line between acceptable, and unacceptable, dress codes.
Contrary to some media reports, the ECJ decisions don’t mean that you can always ban religious symbols so long as your ban covers all religions and beliefs.
Rather, cases will turn on their own particular facts. Bear in mind the case of Eweida, in which BA refused to allow an employee to wear a visible cross. The European Court of Human Rights indicated that BA’s desire to project a certain corporate image was a legitimate aim; but nonetheless found that its ban was disproportionate.
We would recommend that you take legal advice before implementing any restrictions on religious dress at work. In practice, alongside the legal risks you would of course need to consider the impact of a ban on individual employees and wider employee and customer relations, and the likelihood of negative press.
On March 17, 2017