Update: Headscarves - Is your workplace dress code discriminatory?



Catherine Greig

MacRoberts’ associate Catherine Greig summarises yesterday’s “burka ban” case at Luxembourg. 

A neutral ban on the wearing of all visible religious signs is not direct discrimination, according to the European Court of Justice yesterday. A receptionist in Belgium wanted to wear an Islamic headscarf while at work. Her employer had a policy banning any visible signs of political, philosophical or religious beliefs. The internal rule treated all employees in the same way, requiring them all to dress neutrally.   As a result the employee’s dismissal  did not amount to direct discrimination.

However the Court did not rule out the possibility the dress code might amount to indirect discrimination. Although apparently neutral, its results may in fact disadvantage people of a particular religion. An employer’s desire to project an image of political, philosophical and religious neutrality towards its customers can be a legitimate aim. However the Court queried whether it was possible to offer the employee a post not involving any visual contact with those customers, rather than dismissing her. If this was a possibility, then the dismissal probably amounts to indirect discrimination.

What can employers in the UK take from this decision? First, when applying a dress code rule, work out exactly what it is you are trying to achieve.   Secondly, consider whether you are applying the rule in a genuine and consistent way. For example if your main motivation for the rule is customer perception, do you need to apply the rule to non-customer facing employees?

The Court considered a similar French case at the same time, involving a design engineer providing IT consultancy services to clients. A client complained about the employee wearing a headscarf. The Employer asked her not to wear the headscarf next time she met those clients. The employee refused and was dismissed. The question for the Court was whether the wishes of a client, who didn’t want to deal with someone wearing an Islamic headscarf, could be a defence to a claim of discrimination. Unsurprisingly, the answer was no.

Case C-157/15 Achbita v G4S Secure Solutions and Case C188/15 Bougnaoui v Micropole Univers.