By Eliza Nash of Osborne & Wise
Yes, and no, held the European Court of Justice (ECJ) in two separate cases involving employers objections to Muslim employees wearing a headscarf. The facts of these cases are referred to in more detail in our June and September 2016 newsletters.
In Achbita and anor v G4S Secure Solutions NV, the employee code of conduct stated that employees ‘are not permitted to wear any religious, political or philosophical symbols while on duty’. The ECJ held that a company rule prohibiting the wearing of visible signs of political, philosophical or religious belief, which covers all such manifestations of belief without distinction, is not directly discriminatory on the ground of religion or belief. Such a rule may, however, give rise to indirect discrimination. Indirect discrimination occurs where an apparently neutral provision, criterion or practice has a detrimental effect on a protected group (here, Muslims), unless that provision, criterion or practice is objectively and reasonably justified.
In Bougnaoui and anor v Micropole SA, a customer complained that Ms Bougnaoui had worn her headscarf and requested that she not do so in future. When M SA raised this issue with Ms Bougnaoui, she refused to comply with the customer’s wishes and so M SA dismissed her. The ECJ held that if there is no general rule and the employer relies on a customer’s objections to being served by an employee who wears an Islamic headscarf as a reason to dismiss that employee, such treatment is discriminatory and cannot be defended on the basis of a ‘genuine and determining occupational requirement’.
The points to take away from these cases seem to be: (1) Where there is a rule covering visible manifestation of beliefs without distinction therefore treating all employees of the undertaking in the same way, there will be no direct discrimination but it may yet amount to indirect discrimination (although it might be objectively justified by the employer’s pursuit of a policy of political, philosophical and religious neutrality in its relations with customers), and (2) Decisions not based on a general rule, but on a customer’s unwillingness to be served by an employee wearing an Islamic headscarf, will amount to discrimination unless justified as a ‘genuine and determining occupational requirement’, which only applies in very limited circumstances and does not cover subjective considerations, such as the employer’s wish to take account of the particular wishes of the customer.
The area of dress codes remains something of a minefield in terms of the potential for various types of discrimination claim and if you are uncertain about a particular policy, please contact a member of the OW team.