Update: The ECJ cases mentioned in the blog below have now been decided - we discuss them in our blog from March 2017.
Employers will be well aware that banning religious dress at work risks religious discrimination claims.
However, quite where the courts will draw the line between acceptable, and unacceptable, dress codes is not entirely clear.
Three examples of discriminatory dress codes:
- In Eweida,an employee objected to British Airways'policy of not allowing staff to wear visible jewellery, as she wanted to wear a visible cross as a symbol of her Christian faith. Although the UK courts considered BA's policy to be justified, the European Court of Human Rights disagreed.
- In R v Aberdare Girls' High School, the High Court considered that it was discriminatory for a school to prevent a pupil wearing a bangle (which was of religious significance to her).
- In Noah v Sarah Desrosiers t/a Wedge, a hair salon refused to employ a Muslim hairdresser who insisted on wearing a headscarf. The salon claimed that it was essential that stylists have their own hair on show. A tribunal found that a blanket ban on headscarves was disproportionate.
Three examples of non-discriminatory dress codes:
- In Azmi v Kirklees Metropolitan BC, an employer was allowed to insist on a school support worker removing her veil (which covered all but her eyes) when teaching children, as the veil prevented her from communicating effectively.
- In contrast to Eweida, the European Court of Human Rights found that a hospital could prevent Ms Chaplin from wearing a crucifix on health and safety grounds.
- In Begum, a nursery could prevent the wearing of a jilbab (which covers the body from neck to ankle) which presented a tripping hazard - the nursery allowed women to wear ankle-length jilbabs so long as they did not present a tripping hazard.
Two new cases - will they provide clarity?
The first cases on religious dress have now come before the European Court of Justice (ECJ). In both cases, employees were dismissed for refusing to remove an Islamic headscarf (hijab) which covered the head and neck, but not the face.
In the French case of Bougnaoui v Micropole, the employer's position was that it imposed a general ban on the wearing of religious signs and apparel (for all religions and beliefs) when employees were attending client premises.
The Advocate General's view was that such a ban was 'direct' discrimination - if correct, this would mean there was no potential for an employer to justify it.
However, the Advocate General went on to comment that the ECJ might view this case as one of 'indirect', rather than direct, discrimination.
Employers can defend indirect discrimination claims if they can show that their policy is objectively justified (i.e. it has a legitimate business aim and is a proportionate way of achieving that aim) but, in any event,the Advocate General considered it unlikely that Micropole's ban could be justified in this way.
In the Belgian case of Achbita v G4S Secure Solutions, a different Advocate General considered that an employer's ban on wearing visible signs of political, philosophical or religious beliefs was potentially indirect, but not direct, discrimination.
This meant there was scope for the ban to be justified, and, unlike in Bougnaoui, the Advocate General indicated that she was reasonably convinced that G4S could justify its ban.
How will the ECJ reconcile these opinions?
The contrast between these opinions underlines the difficulties facing the ECJ in finding an appropriate solution. Not only will it need to grapple with the legal complexities, it will also need to navigate its way through the social and political sensitivities inherent in this issue.
The ECJ's decisions are expected later this year.
What should employers do for now?
The Advocate Generals' opinions are just that, opinions, and are not legally binding. Aspects of the reasoning have also come under some criticism.
Our view is that a UK employer banning a headscarf that leaves the face uncovered would be at risk of a successful discrimination claim.
However, there may be limited circumstances, as in Azmi (above) where an employer could justify a prohibition on a veil covering the face. Even then, proceed with caution and take legal advice before implementing such a policy.
If you are concerned that any provisions of your dress code might discriminate on religious grounds, and you want to talk this through, get in touch with your usual Brodies contact.