The implications for employers of two recent EU judgments. By James Major, partner, Clyde & Co.
Employers often require their workers and employees to adhere to certain standards of dress in the workplace, whether that’s business attire or a uniform.
Two recent decisions of the Court of Justice of the European Union considered whether employers could enforce a policy of ‘neutrality’, requiring employees to refrain from wearing visible signs of their political, philosophical or religious beliefs in the workplace.
The court is responsible for interpreting European Law and its decisions are binding on all EU member states, so these cases have broad applications.
The two cases (Achbita v G4S Secure Solutions NV and Bougnaoui v Micropole) considered questions referred to the CJEU by courts in Belgium and France. Ms Achbita was a Belgian receptionist, who chose to wear a Muslim headscarf (or hijab) when at work. Her employer originally had an unwritten policy of ‘’neutrality’’ which required employees to refrain from wearing visible signs of their political, philosophical or religious beliefs in the workplace. Once Ms Achbita confirmed her decision to wear the hijab at work, her employer formalised the policy and then dismissed her. She claimed religious discrimination.
The question put to the CJEU by the Belgian courts was whether Ms Achbita’s employer had directly discriminated against her because of her religion.
It decided that the employer’s neutrality policy applied to all employees and all visible signs of political, philosophical or religious beliefs ‘’without distinction’’ and that it had not dismissed Ms Achbita because she was Muslim, but rather because wearing a hijab did not comply with the employer’s policy. The court said that the same policy would have applied equally to Jewish or Sikh headwear.
The court stated that an internal dress code could potentially amount to indirect religious discrimination if it put adherents of a particular religion at a particular disadvantage, unless it was objectively justified by a legitimate aim. This is unsurprising.
What is more interesting is that the court concluded that the pursuit of a policy of political, philosophical and religious neutrality is likely to be a legitimate aim, and therefore capable of justification, as long as the employer’s means of achieving the aim are appropriate and necessary.
At the same time, the court considered a claim by Ms Bougnaoui, a French design engineer, who wore the hijab at work. Unlike in the Belgian case, Ms Bougnaoui’s employer did not have a specific policy in place about dress codes or ‘neutrality’. Ms Bougnaoui was asked to work at a client site and the client complained about the fact that she wore a hijab. Ms Bougnaoui’s employer asked her to remove the hijab when working at the client site and asked her to respect ‘the principle of neutrality’. When she refused, Ms Bougnaoui was dismissed and she brought a claim for religious discrimination.
The French courts asked the CJEU to consider a slightly different question; whether an employer’s willingness to take into account the wishes of a customer who did not wish to be provided services by a worker wearing an Islamic headscarf was permitted as a genuine occupational requirement (whereby discrimination is permitted as long as the occupational requirement is legitimate and proportionate). The court stated that an employer could not rely on a genuine occupational requirement to avoid an allegation of discrimination if the requirement simply covered subjective considerations. As a result, the employer’s wish to keep its customer happy by not sending an employee wearing a hijab could not be a genuine occupational requirement.
In France and Belgium, religion is seen as a private affair and separate from “public life” (which could perhaps justify a policy of religious neutrality in the workplace), whereas employers in the UK tend to be more accommodating. While the Achbita and Bougnaoui cases do suggest that a policy of “neutrality” in terms of religious dress in the workplace might amount to a legitimate aim, employers in the UK would still have to clear the hurdle of showing that the policy is a proportionate means of achieving that legitimate aim, balancing business interests on the one hand and an employee’s reasonable freedoms on the other. That is likely to remain a difficult hurdle to overcome notwithstanding these decisions.