August 16, 2016

Religious clothing and the workplace – your legal rights and responsibilities

A recent European Court of Justice (ECJ) case has examined the issue of religious clothing in the workplace, but those looking for a definitive ruling in this sensitive area may be disappointed.

The ECJ’s decision in Samira Achbita v G4S Secure Solutions, delivered in June 2016, goes some way to clarifying the position.

Ultimately, however, the ruling suggests employers should consider whether their own policies discriminate.

Religious clothing – background to the case

Ms. Achbita worked for Belgian-based G4S Secure Solutions who operated a policy not to allow employees to wear any visible signs of their political, philosophical or religious beliefs.

For the first three years of her employment, Ms. Achbita abided by this policy. Although she wore a headscarf in accordance with her religious beliefs, she removed it when she was at work.

After three years Ms. Achbita decided she wanted to wear her headscarf in work and notified her employers of her intention.

She was subsequently dismissed, and brought legal proceedings against her employer.

A Belgian Labour Court (the equivalent of an employment tribunal in the UK) heard the matter and found for the employer, declaring that there was no direct or indirect discrimination.

An appeal court upheld the decision, finding the previous case law and judgments unclear.

The matter was referred to the Belgian Constitutional Court, who called on the ECJ to provide a preliminary ruling on the meaning of “discrimination on the grounds of religion or belief.”

Opinion of the ECJ on religious clothing in the workplace

The ECJ had to consider whether direct discrimination occurred by prohibiting a female Muslim employee from wearing a headscarf in the workplace by imposing a policy which prevents all employees from wearing or displaying signs of political, philosophical and religious beliefs.

The distinction between ’direct’ and ’indirect’ discrimination was significant in that only indirect discrimination is capable of being justified.

The court decided that there was no direct discrimination because the policy applied to all religions (including those with no faith), genders and races.

And on that basis it was “neutral from the point of view of religion and ideology.”

The court added that the mere fact that some employees wish to give expression to a particular faith – whether religion, philosophical or political – and other colleagues do not, does not amount to “less favourable treatment.”

The court further stated that while preventing an employee from wearing a head scarf may interfere with their right of freedom of religion, not every interference amounts to discrimination.

So if the ban was based on stereotypes or prejudice of one religion or another then this would be evidence of direct discrimination.

This part of the judgment appears to be common sense, and good for employers and employees alike.

However, this is where things become less clear:

The court also observed that the policy as it stands may put a certain group of people – “mainly female employees of Muslim faith” –- at a particular disadvantage, and may constitute indirect discrimination.

But if the employer can justify the policy it may not amount to discrimination.

This part of the judgment unfortunately is uncertain, and leaves it to the employer to consider whether a policy (whether on a dress code or other matters) discriminates or not.

Conclusions employers can take from the case

It is perfectly acceptable for employers to request employees dress in certain ways as part of a company policy dress code as long as the requests are reasonable.

And therefore requesting an Islamic headscarf not be worn may be justifiable on certain grounds.

But this case highlights the difficulties and complex issues that can arise for employers when operating a dress code. In simple terms, the ECJ‘s decision is that it may be legitimate to ask someone to dress in a particular way, but care must be taken to ensure discrimination does not arise as a result of the request.

Unfortunately this doesn’t give employers any definitive answers.

If you’re considering implementing a clothing policy in your workplace, or you would like to discuss aspects of a policy already in operation, Moorepay’s experts can help you navigate this legally complex area.

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About the author

Francis Scoon

Francis has over 20 years’ experience of Employment Law and HR related issues gained in both large public and private organisations. As well as representing SMEs, Francis has worked in the Employment Department of a large regional law firm, advising preparing and representing cases on behalf of claimants. Before joining Moorepay, Francis was a Senior Advocate where, in addition to maintaining a caseload of employment tribunal cases covering all aspects of employment law, he managed a team of advocates and an administrator.

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