March 20, 2017
The Workplace Headscarf Ban is Legal
The European Court of Justice (ECJ) has said a workplace headscarf ban is legal, but what does this mean for UK employers?
We’ve covered the case on this blog previously (catch up on the background here), but in brief:
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.
Looking at the facts of the case
The facts of this particular case involved an internal rule (initially unwritten, then written later) referring to not permitting the wearing of visible signs of political, philosophical or religious beliefs, thus treating all employees of the business in question in the same way.
As a result there was no difference of treatment on religion or belief (known as direct discrimination) in the ECJ’s view.
Facts of other cases will naturally be somewhat different, so for small and medium businesses it’s essential to tread very carefully in this area and seek specialist employment law advice.
Be careful to avoid indirect discrimination
The other point to consider is a rule (written or not) such as this could indirectly discriminate if it puts people adhering to a particular religion or belief at a particular disadvantage.
This set of circumstances would indirectly discriminate against those people unless the business relying on the rule had a legitimate aim and they could show the means of achieving the legitimate aim were appropriate and necessary (or to put it another way, proportionate).
In summary, a very complex area of law for employers to navigate.
Questions for the national court to ponder
This indirect discrimination point was not determined by the ECJ and so the national court will now need to listen to the facts of the case and unpick two key legal questions:
- Whether the employers’ desire to project an image (via it’s client facing colleagues only) of neutrality towards both its public and private sector customers is a legitimate aim?
- Whether the way it achieves this legitimate aim, namely through a written rule not permitting the wearing of visible signs of political, philosophical or religious beliefs for its client facing colleagues (which must be applied consistently and in a systematic manner) is a proportionate means of achieving that legitimate aim?
- A further question for the national court to consider is whether it was possible (and reasonable) for the employer to move the employee in question into a non client-facing role, rather than dismissing her for breaching their company rule.
There was one additional ruling in this ECJ case which UK employers should be very aware of: absent a written rule such as above, a customer asking for removal of a head scarf is not a ‘genuine and determining occupational requirement’ (genuine requirement of the job) which could rule out discrimination.