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Can a dress code policy which restricts the wearing of religious dress be discriminatory?
An employer’s neutral dress code policy prohibiting the wearing of any visible symbol of political, philosophical or religious belief has been held, in the recent ECJ judgment in Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions, not to discriminate against a Muslim woman who, in accordance with that policy, was prevented from wearing an Islamic headscarf to work.
The Claimant in this case, Ms Achbita, was employed by G4S Secure Solutions in Belgium as a receptionist. G4S had a policy across the board that employees in Belgium are not permitted to wear any religious, philosophical or political symbols whilst at work. The policy applied to all employees irrespective of their religious views or requirements. After working for G4S for 3 years, Ms Achbita started to wear a headscarf to work and stated it was as a result of her religious beliefs. Prior to this Ms Achbita had only worn her headscarf outside of work. When Ms Achbita refused to remove her headscarf at work, G4S dismissed her and she pursued a claim for direct and/or indirect religious discrimination.
At the first tier of proceedings the Belgian Labour Court held that there was no direct or indirect discrimination. This decision was then upheld on appeal and eventually the case made its way to the European Court of Justice to decide the issue of whether the headscarf ban amounted to direct discrimination under the Equal Treatment Framework Directive.
The Advocate General was of the view that where a policy is applied to all employees regardless of their political, philosophical or religious belief, it would not directly discriminate individuals of a particular political, philosophical or religious belief. Indeed, there was nothing to indicate that Ms Achbita had been treated less favourably than others by G4S’s decision to enforce the dress code and everyone was subject to the dress code in the same way. The Advocate General did however state that a ban on Muslim head-scarves could constitute indirect religious discrimination. Although the application of such policy could, in any event, be justified to enforce an employer’s policy of religious and ideological neutrality, as long as the application of the rule is a proportionate means of achieving a legitimate aim.
Points to remember:
- Before implementing any policies which could disadvantage certain employees, always ensure you take legal advice.
- You should not simply rely on neutral wording of policies but ensure that such policies are applied equally to all staff in practice.
- Ensure you have an equality and diversity policy in place.
- Try to be flexible in your application of the dress code policy; the more flexible you can be whilst still maintaining your business aims the less likely you will run into difficulties.
- Think carefully about the reasoning and impact of any dress code policy you implement.
Carley Kerrs-Walton, HR & Employment Solicitor – QCS Expert Employment Law Contributor