Dress codes have hit the headlines again due to a potentially controversial opinion by the Advocate General (AG) that a dress code banning Islamic headscarves was not religious discrimination (Achbita and another v G4S Secure Solutions NV C-157/15). According to the AG, the dress code was not directly discriminatory as it prohibited the wearing of all visible signs of religious, philosophical and political beliefs, and did not distinguish between different religions or between religious and non-religious beliefs. While it may have constituted indirect discrimination, the AG opined that it was justified in this case.
The opinion follows recent debate in the UK about the requirement for a female employee to wear high heels in the workplace and highlights the potential difficulty in achieving a balance between an employers’ wish to project a certain corporate image and the need to protect employees from discrimination (see News brief “Dress codes in the modern workplace: down at heel”).
The case arose out of the dismissal of Ms Achbita, a Muslim employee, for refusing to remove her headscarf in contravention of G4S’s dress code. Ms Achbita had, by this point, been working for G4S as a receptionist for three years and had previously chosen only to wear her headscarf outside of the workplace.
Ms Achbita brought unsuccessful claims for direct and indirect discrimination in the Belgian courts. The European Court of Justice (ECJ) was asked to determine whether the prohibition on wearing a Muslim headscarf at work constituted direct discrimination contrary to Article 2(2)(a) of the Equal Treatment Framework Directive (2000/78/EC) (the Directive) where the employer’s rule prohibited all employees from wearing outward signs of political, philosophical and religious beliefs at work (the ban).
The AG took the view that there was no direct discrimination on the ground of religion, provided that the ban was founded on a general company policy of neutrality and not on stereotypes or prejudices against one or more particular religions, or against religious beliefs in general. In this case, there was no less favourable treatment that was directly linked to religion, as all employees were subjected to the ban in the same way and it applied to all visible religious, philosophical and political symbols. As such it was neutral from the point of view of religion and ideology.
Although the Belgian court asked the ECJ to opine on the concept of direct discrimination only, the AG also considered whether the ban could amount to indirect discrimination. In this context, indirect discrimination would occur where a provision, criterion or practice is applied equally to all employees, but would put individuals of certain religions or beliefs (in this case, female employees of the Muslim faith) at a particular disadvantage in comparison with their colleagues (Article 2(2)(b), the Directive). The AG concluded that the ban may constitute indirect discrimination if it cannot be justified under the Directive.
Indirect discrimination may be objectively justified if it has a legitimate aim and the means of achieving that aim are appropriate and necessary (Article 2(2)(b)(i), the Directive). In addition, a difference in treatment based on a characteristic related to any of the protected grounds, such as religion, will not be discrimination (either direct or indirect) where the characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate (Article 4(1), the Directive).
The AG devoted a large part of her opinion to discussing whether the ban qualified as a genuine and determining occupational requirement. She concluded that it did and that the requirement for employees to adhere to a neutral dress code was both legitimate and proportionate. The AG commented that the ban was appropriate as a way of implementing a legitimate corporate policy of neutrality that was applied consistently to all employees, and that it was a necessary measure as no suitable, yet less intrusive, alternative could be identified.
In conducting the balancing act between the conflicting interests of employees and employers that is required to establish proportionality, the AG set out a number of factors that should be taken into account, including the:
- Size and conspicuousness of the religious symbol.
- Status of the employee and the nature of the employee’s activity.
- Context in which the employee has to perform the activity, for example, face-to-face contact with customers would be a relevant factor.
- National identity of the member state, for example, the constitutional status of secularism in France would be relevant.
While stressing that it is for the domestic courts to strike a fair balance between the needs of the employer and the employee’s individual rights, the AG made it clear that she believed that GS4’s stance in this case was justified.
The AG emphasised that her comments about justification as an occupational requirement were equally applicable to direct discrimination. Therefore, if the ECJ disagrees with the AG, and finds that the ban on the wearing of the headscarf constitutes direct discrimination, the justification argument might still apply.
The opinion by the AG is not binding on the ECJ when it delivers its judgment, although opinions are often followed. Together with Bougnaoui v Micropole Univers, a similar case on reference from France that is currently pending, this is the first time that religious discrimination cases have come before the ECJ (C-188/15). The ECJ is expected to give a landmark decision that is likely to set a strong precedent throughout the EU. It will certainly be very interesting to see how the ECJ will grapple with this sensitive and difficult issue.
It is notable that the AG separated religious belief from other protected characteristics that have concerned the ECJ in previous cases, and where direct discrimination has always been assumed on the basis of an inseparable link between a measure and the reason for difference in treatment. She presented the manifestation of religion as a mode of conduct, over which the individual has a choice, and which an employee is expected to moderate in the workplace, as opposed to an individual’s immutable physical features or personal characteristics.
The AG made no distinction between the requirements of different religions, which take differing views as to the level of choice afforded to followers. However, she appeared to distinguish Eweida and others v United Kingdom, where British Airways had an exception in its dress code for “mandatory” religious items such as the Muslim headscarf, on the basis that GS4 by contrast applied its policy consistently to all employees and this showed that it was appropriate for the purposes of achieving GS4’s aim of neutrality (see box “Eweida v United Kingdom”).
Much is made in the opinion about the importance of neutrality and how crucial this was to GS4’s image as a business providing services to a wide range of clients. This seems a rather low threshold, particularly given that the Directive states that justification should apply only in very limited circumstances, and the provision of services to a wide range of clients is hardly unique to GS4. If a policy of neutrality is sufficient and is adopted by a large number of employers, a workplace ban on religious symbols might arguably make it unduly difficult for those of certain faiths to integrate into working life. This assertion was dismissed in Achbita on the basis that Ms Achbita had worked for three years without wearing the headscarf at work. Regardless of the weight attached to that argument, it is unlikely to be applicable in many other cases.
Pending a decision by the ECJ, employers in the UK should continue to exercise caution in relation to dress codes that restrict employees’ rights to wear clothing or jewellery associated with religious beliefs. They should ensure that the dress code can be objectively justified and that a balance is struck between the reason for any dress code and the disadvantage likely to be suffered by the employee.
Sharon Tan is a partner, and Åsa Waring is a legal director, at Mishcon de Reya LLP.
Eweida v United Kingdom
In Eweida v United Kingdom, the European Court of Human Rights (ECHR) held that the UK had failed to protect an employee’s right to manifest her religious belief under Article 9 of the European Convention on Human Right (www.practicallaw.com/0-524-3687). The Court of Appeal had held that Ms Eweida, a member of check-in staff for British Airways, was not indirectly discriminated against when she was required to conceal her cross necklace to conform to the British Airways dress code (www.practicallaw.com/0-501-7707). The ECHR held that while British Airways’ wish to project a certain corporate image was legitimate, the Court of Appeal had given it too much weight.
This article first appeared in the July 2016 issue of PLC Magazine http://uk.practicallaw.com/resources/uk-publications/plc-magazine