The European Court of Justice has decided that an internal rule which prohibits the visible wearing of any religious sign does not constitute direct discrimination based on religion or belief. Although such a rule might constitute indirect discrimination, it may be objectively justified.
Ms Achbita (A) was employed, in Belgium, as a receptionist by G4S and was involved in providing reception services for customers. At the time of A’s recruitment there was an unwritten rule within G4S prohibiting employees from wearing visible signs of political, philosophical or religious belief in the workplace. When A informed her employer that she intended to wear an Islamic headscarf at work, she was told not to as this was contrary to the position of neutrality adopted by G4S in its contact with customers. Shortly after, the G4S works council approved a change to the workplace regulations which provided that ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’. A was dismissed because she insisted on wearing the Islamic headscarf at work. She challenged her dismissal in the Belgian courts, which referred the matter to the ECJ.
Ms Bougnaoui (B) worked at Micropole, in France, initially as an intern and then as an employee. Before the start of her internship, she was told by a representative of the employer that wearing an Islamic headscarf at work might pose a problem when she was in contact with customers. B did wear an Islamic headscarf at work. Following a complaint from a customer to whom B had been assigned, Micropole reaffirmed the principle of the need for neutrality as regards its customers and asked B not to wear the veil in future. B objected and was dismissed. She challenged her dismissal in the French courts, which referred the matter to the ECJ.
The ECJ considered both cases together.
The Court decided that, as G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs, it covers any manifestation of such beliefs without distinction. All employees are treated in the same way and are required, generally and without differentiation, to dress neutrally. There was no evidence that the internal rule was applied differently to A as compared to other G4S employees.
The Court concluded, therefore, that the rule is not directly discriminatory as it does not introduce a difference of treatment that is directly based on religion or belief.
The Court also considered the issue of indirect discrimination. It found that the employer’s internal rule could be indirectly discriminatory if the obligation it imposes, although apparently neutral, in fact results in persons of particular religion being put at a particular disadvantage. Such indirect discrimination may, however, be objectively justified by a legitimate aim, provided that the means of achieving that aim are appropriate and necessary.
In terms of G4S’s rule, the ECJ gave guidance on the matters that the Belgian court should consider when assessing objective justification. According to the ECJ –
- the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality is a legitimate aim, notably where the only workers involved are those who come into contact with customers;
- the ban on the visible wearing of signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is pursued in a consistent and systematic manner;
- the Belgian court will have to ascertain whether the prohibition covers only G4S workers who interact with customers. If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued; and
- the Belgian court should also ascertain whether it would have been possible for G4S to offer A a post not involving any visual contact with customers, instead of dismissing her.
The ECJ decided that the willingness of an employer to take account of the wishes of a customer no longer to have services provided by a worker wearing an Islamic headscarf cannot be considered to be a ‘genuine and determining occupational requirement’ for discrimination purposes. The Court pointed out that there are very limited circumstances in which a characteristic related to religion can constitute a genuine and determining occupational requirement. This concept refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out and does not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of the customer.
Although the decision of the ECJ does allow some scope for an employer to operate a dress code which requires religious neutrality, in reality that scope is extremely limited. Such a code is only possible where its use is in pursuance of a legitimate business aim and, further, it must be a proportionate means of achieving that aim. Employers should also be aware that dress codes can give rise to risks of other types of discrimination, for example sex or disability discrimination. Practical points to consider in reviewing or implementing a dress code are –
- Addressing why the dress code is necessary by identifying a legitimate aim;
- Considering the scope of the code and what the justification is for its different elements;
- Deciding whether employees or employee representatives should be consulted about the code;
- Ensuring that the code is applied consistently and systematically across the business; and
- Considering what flexibility might be allowed within the code, where exceptions might be possible and how any flexibility can be managed consistently across the business.