Legal lowdown: Banning headscarves at work
Alan Price, March 15, 2017
The ECJ has decided it's not religious discrimination to ban Islamic headscarves at work. But care must still be taken
The European Court of Justice (ECJ) has decided that it is not an act of religious discrimination for an employer to ban an employee from wearing an Islamic headscarf at work, provided said employer has a 'neutral dress' policy in place.
The case in question centred around a Belgian Muslim employee who informed her employer that she was going to start wearing an Islamic headscarf at work. The employer, G4S Secure Solutions, told her that wearing a headscarf would contravene its rules on neutrality and subsequently amended its dress code to the effect that employees were not permitted to wear any visible symbols connected to political, philosophical or religious beliefs. The employee claimed this was religious discrimination.
Upon analysis the ECJ decided that an employer is allowed to have a policy that instils a ‘neutral’ dress code on its employees, in effect banning Islamic headscarves at work. This ban would not represent direct religious discrimination. However, that is not the only risk with this type of policy, and the court indicated that there may still be a risk of indirect religious discrimination. Employers who have, or wish to implement, a dress code policy of the same type as in this case should ensure it is drafted and implemented with caution.
Employers with a dress code aimed at ensuring neutrality must be sure that the policy applies to all employees and avoid singling out people of a particular religion for different treatment etc. If the effect of a policy was to treat some employees differently from others based on their religion, this is likely to make the 'neutral' dress code directly discriminatory towards those groups who are adversely affected.
In addition, the reason behind a blanket ban on political, philosophical or religious manifestations through dress is a key element when deciding whether the policy is indirectly discriminatory.
This is because indirect discrimination is capable of being objectively justified. Indirect discrimination occurs when a rule is applied to everyone equally but the imposition of the rule disproportionately affects members of a particular group or groups more than others, and the employer does not pass the objective justification test. There must be a legitimate aim, and the employer’s measures must be a proportionate way of achieving the aim.
In this case the aim of the employer to project an image of neutrality when in the company of customers was considered to be legitimate.
The court suggested that employers may need to look at ways to accommodate employees who still wish to wear religious items of clothing at work. For example: moving them to another role that doesn't involve contact with customers.
The court was clear, however, in its message that the neutrality policy must come from the employer itself. Customer not wanting to come into contact with employees wearing items of religious clothing as a reason for a ban would not be sufficient to defend against a claim of discrimination.
Commentators have immediately taken to social media to give their opinion on the decision. Some express concerns that they will be driven out of work by employers who impose a ban on headscarves, saying that in the event they had to choose between work and their headscarf they would give up work.
It is important to note that a neutral dress policy would not only affect Muslim employees; there are several other items of clothing and jewellery which are connected to religion. For example: Christian employees who want to wear a cross on a necklace, Sikh employees wearing turbans, and Jewish men wearing skullcaps may also be affected. Ostensibly this employer’s policy would have to ban them all; to allow some but not others would likely constitute direct religious discrimination.
In addition, it should not be forgotten that the employer’s dress code policy, in this case, also banned symbols connected to political and philosophical beliefs. This could be, for example, badges demonstrating allegiance to a political party or its policies.
Alan Price is director at employment law and HR consultancy Peninsula Business Services