Religious dress bans

Religious dress bans can be lawful – at least under European law. Phil Allen reports on recent rulings from the Court of Justice of the European Union.

The Court of Justice of the European Union has handed down important Judgments about bans on wearing religious dress which had been applied by employers in Belgium and France. Importantly the Court has held that where there is a blanket ban on wearing visible signs of political, philosophical or religious beliefs in the workplace, even though that may have an indirectly discriminatory impact on women who are Muslim and wish to wear a headscarf in the workplace, such a ban can be justified for customer-facing roles. This could potentially be an important judgment for employers who wish to have such a ban, albeit the extent to which it will translate into UK law still needs to be determined.

The facts

Ms Achbita was a Muslim employed by G4S in Belgium as a receptionist. When she insisted on wearing an Islamic headscarf at work, she was dismissed for breaching the G4S dress neutrality rule that said “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”.

Ms Bougnaoui was employed as a design engineer by Micropole in France. A customer to whom she had been assigned complained about her religious dress and, as a result, the employer asked her not to wear a veil in the future. When she refused to comply with their dress neutrality requirements she was dismissed.

The European Court has confirmed that a policy applied universally to all, such as that operated by G4S, does not amount to direct religious discrimination when applied to a Muslim employee who wishes to wear a headscarf. A policy which bans only Islamic headscarves would be unlawful direct discrimination, but a policy which requires all employees to dress neutrally does not (Ms Achbita was not dismissed because of her Muslim faith).

However if such a ban does place Muslim women at a particular disadvantage (as would appear likely to be the case), it can amount to indirect religious discrimination. That means the employer needs to justify their ban. In the key part of the judgment for employers, the Court says that such a blanket ban can be justified.

For all protected characteristics there is an ability to discriminate where there is a genuine occupational requirement which obliges the employer to do so, albeit such circumstances are relatively rare. The French employer’s attempts to rely upon these provisions based upon the customer’s requests has been utterly rejected.

What does this mean for me?

What is most important about this judgment is what the European Court has ruled about indirect discrimination. It says that an organisation’s desire to display, in relations with customers, a policy of political, philosophical or religious neutrality, “must be considered legitimate”. However as the employer can only be justified where they take a proportionate response, this only applies where the employer applies the policy to those workers who come into contact with the employer’s customers. The Belgian Court will need to consider whether it was possible for G4S to continue to employ Ms Achbita in a role which does not involve visual contact with customers.

For employers there are two important lessons for you from the judgments, which may at first appear conflicting. A neutral dress policy must be applied in a consistent and systematic manner; exceptions to the rules will undermine its application to others. However a policy based on the need to present a neutral front to customers, can only apply to customer-facing roles (and those where the customer actually sees the employee) – you will be obliged to try to identify other opportunities for an employee before you dismiss them for not complying with a neutrality/not-wearing religious dress policy.

Comment

It is important to remember that these are not decisions about the application of UK law. Whilst EU Directives apply consistently across Europe, when an employer can justify indirect discrimination is something for which national courts are given some leeway to consider national law. France and Belgium have specific constitutional principles on secularism which may mean that any employer arguing justification is more likely to have such a ban upheld. There also remains arguments about human rights such as those raised in the Eweida case (about the BA employee who wished to wear a cross) which will need to be explored. We will have to wait to see what a UK Tribunal or Court says in a UK case, before we know the extent to which the decisions in these cases reflect UK law. These judgments fall a long way short of meaning that applying such a ban in the UK will not be an unfair dismissal or even discriminatory.

Phil Allen is a partner in the employment, pensions and immigration team at Weightmans. He can be contacted on 0161 214 0504 or This email address is being protected from spambots. You need JavaScript enabled to view it..