Ban on Religious, Political and Philosophical Symbols Lawful
It may not have escaped your attention that the ECJ has just issued high-profile judgments in two cases concerning employees wearing headscarves at work. Many reported that the ECJ had upheld employers’ rights to ban employees from wearing headscarves in the workplace. This is true, but with several important caveats explained below. In practice, the ECJ’s decisions are unlikely to have a significant impact on UK workplaces.
In brief, the ECJ made two significant findings. First, an employer can never hide behind a customer’s wishes to justify its discrimination. This is not a new proposition or game-changer when it comes to how the UK has traditionally dealt with discrimination.
Second, the ECJ decided that a company rule prohibiting all employees from wearing any type of political, philosophical or religious symbols can potentially be implemented, with caveats: (i) the ban must be justified by a legitimate overarching aim, such as the desire to project a neutral corporate image to customers; and (ii) if external image is the aim, it may not be appropriate to apply the ban to non-customer facing employees. However, every case turns on its own circumstances, so even if it satisfies these caveats, the ban could still be unlawful indirect discrimination.
The European Court of Justice (ECJ) has given judgments in the Belgian case of Achbita v G4S Secure Solutions NV and the French case of Bougnaoui & ADDH v Micropole SA. In Achbita, the company’s code of conduct prohibited employees from wearing any religious, political or philosophical symbols whilst on duty. G4S provides reception services to clients and Ms Achbita, a receptionist, was dismissed after she informed G4S that she intended to wear a headscarf at work. In Bougnaoui, the employee worked as a design engineer. She was told when she was recruited that due to the customer-facing nature of her role, she would not be able to wear her veil at all times. A customer complained that she had worn a veil on a site visit and she was dismissed when she refused to comply with the customer’s request that she should not wear it in future.
The ECJ ruled that:
- A company rule prohibiting employees from wearing any political, philosophical or religious symbols does not constitute direct discrimination on grounds of religion or belief. As the rule applied equally to all employees, Ms Achbita had not been treated less favourably on grounds of religion or belief and accordingly there was no direct discrimination.
- However, such a rule may be indirectly discriminatory if it puts persons adhering to a particular religion at a particular disadvantage and cannot be objectively justified. The ECJ considered that an employer’s desire to display political, philosophical and religious neutrality in its relations with its customers may be a legitimate aim and may justify the imposition of such a ban, provided it applies only to employees who interact with customers.
- An employer cannot rely on a customer’s wishes not to have services provided by a worker wearing an Islamic headscarf as an occupational requirement excusing discrimination.
It will not be direct discrimination for employers to ban employees from wearing all visible religious clothing or items at work, as long as the ban applies to all employees in exactly the same way (i.e. to Muslims and Christians, banning headscarves and crosses).
However such a ban could still be indirectly discriminatory as it would impact some religions disproportionately compared to others e.g. Sikh men for whom wearing a turban is intrinsic to their faith. To avoid discrimination, employers will need to show that the ban is proportionate and is to achieve a legitimate aim, which could for example be to project an ideologically neutral corporate image to customers. Even then, the ban might be discriminatory if it applies to non-customer facing employees, when in fact the stated purpose of the ban is to only project a brand image to customers.
In practical terms, the Bougnaoui case is consistent with the longstanding UK position; employers cannot use customer wishes as the basis for discriminating against employees. The Achbita case may not have significant practical impact in the UK as it is unusual for employers here to adopt entirely neutral dress codes without any exceptions. Typically, UK employer dress codes permit some manifestations of religious belief within certain limits; the key for employers is to apply the dress code fairly and consistently. This reflects the UK’s historic multicultural approach to integration, whereas in Belgium it is more common for employers to adopt entirely neutral dress codes, reflecting their secular State.