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Employment Law

Legal guidance - compliance - software

13 JUN 2016

Can an employer prohibit a female, Muslim employee from wearing a headscarf at work?

Can an employer prohibit a female, Muslim employee from wearing a headscarf at work?
Michael Halsey
Partner, Veale Wasbrough Vizards

In Archbita v G4S Solutions, the European Court of Justice (ECJ) Advocate General (the AG) found that a ban on religious clothing was not directly discriminatory under European law where it stemmed from a general policy of neutrality.

The facts

Mrs Archbita was a practising Muslim and receptionist in Belgium for G4S. G$S operated a policy which banned all items of religious, political and philosophical clothing from being worn on duty.

For the first three years of her employment, Mrs Archbita wore an Islamic headscarf strictly outside of working hours, but then became intent on wearing it to work and was consequently dismissed.

Her claim for wrongful dismissal on grounds of discrimination was dismissed by the Belgian Labour Court and was eventually referred to the ECJ for a preliminary ruling. The question for consideration was whether G4S' policy was directly discriminatory under the relevant European Directive.

The AG's opinion

The AG considered that the policy was not directly discriminatory because there was nothing to suggest that Mrs Archbita was treated less favourably. The policy banned all visible religious symbols without distinction, not just headscarves.

Although previous ECJ rulings had interpreted direct discrimination broadly, this was because they concerned 'individuals' immutable physical features or personal characteristics such as gender, age or sexual orientation'.

The AG appeared to distinguish discrimination on the grounds of religion or belief from other forms of discrimination, due to the element of control people have over the way in they manifest their beliefs.

The AG also argued that, even if direct discrimination were to apply, an employer must be allowed a degree of discretion in the pursuit of its business. It is not unreasonable to apply a dress code to receptionists and, therefore, the ban laid down by G4S may be regarded as a 'genuine and determining occupational requirement. G4S' policy was a legitimate and proportionate means of achieving their aim of neutral client interactions. Their diverse client base was found by the AG to justify the ban as the only effective option.

The AG did indicate that G4S' blanket ban may constitute indirect discrimination. However, such discrimination may be justified, subject to the principle of proportionality, in order to enforce a policy of religious and ideological neutrality.

Best practice

One could be forgiven for thinking that this case has given employers in the UK greater leniency in deciding uniform policy. However, there are several factors which mean that the AG's opinion should be treated with some caution:

  • The AG's opinion is not binding on the ECJ, which may reach a wholly different conclusion
  • Discrimination law in the UK (in particular the Equality Act) does not mirror the underlying European Directive. The Equality Act 2010 does not contain the 'genuine and determining occupational requirements' test which features in this case. In the UK direct discrimination on the grounds of religion or belief cannot be justified save in very limited circumstances.
  • While interesting, the AG's opinion appears to contain some surprising conclusions. For example, she appears to rely heavily on the idea that the manifestation of religious belief (for example the wearing of symbols) is something that individuals can choose to do or not to do. This, she suggests, sets such issues apart from other forms of discrimination. There are many who would disagree with this approach.
  • The AG seems to place some importance on G4S' stated need to preserve neutrality. Other cases, such as Eweida v British Airways, are clear that corporate image alone is unlikely to justify preventing an employee from manifesting their religious belief.
It is likely that most employers in the UK will adopt more flexible dress codes than G4S did in Belgium. If you are considering a blanket ban on all items of religious clothing then this still runs the risk of being indirectly discriminatory in the UK unless there are very clear and proportionate reasons to justify it.
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