In 2016 there should be no expectation that women in business should wear make-up or high heels in order to be smartly dressed. Yet there have been a number of high profile cases reported in the press about sex discrimination at work relating to dress codes.
We have also noted an increase in the number of clients referencing comments made by their employers about their appearance. So, in order to discover how common this problem is we have commissioned a study of over 2,000 UK employees and we are examining the law, dress codes and unlawful discrimination in a series of blogs.
The issue of banning the wearing an Islamic headscarf at work has arisen in two cases in Europe recently.
A court in France and a court in Belgium both referred questions to the European Court of Justice (ECJ) asking whether an employer’s ban on wearing a headscarf at work was direct and/or indirect discrimination under the ‘Equal Treatment Framework Directive’. This directive is where the UK’s laws on religious discrimination originate.
Before the ECJ gives a ruling in a case the Advocate General will first give his or her opinion. The Advocate General assists the judge by giving their opinion on the best legal solution to each case before they make their decision. The ECJ usually follows this opinion but does not have to.
Interestingly two different Advocate Generals have given two very different opinions on the same issue. It will be for the ECJ to decide which way to go when it considers these cases later this year.
The Belgian Religious Headscarf Case
The first case concerned a Belgian company, G4S, which imposed a dress code on all staff which prevented them from wearing any religious, political or philosophical symbols while on duty.
Ms Achbita, an employee of G4S, wore her headscarf for religious reasons. She refused to take it off during working hours. G4S dismissed her for her failure to abide by the dress code.
The Advocate General said that in her opinion the dress code did not amount to direct discrimination based on religion or belief; it affected all employees equally. Even if it were directly discriminatory, G4S could justify this policy on the basis of its objective of religious and ideological neutrality.
Surprisingly, the Advocate General based her reasoning on the idea that the practice of religion is something that individuals have a choice over and therefore should be expected to moderate the exercise of their religion in the workplace.
However, many people feel a compulsion to manifest their religion in certain ways, such as the wearing of a turban, or the wearing of a headscarf; it is not a choice. Many would argue that the point of protection against discrimination because of religion or belief is that you should not have to hide certain elements of yourself (whether compulsory elements of your faith or not) as a person while at work.
The French Religious Headscarf Case
The Advocate General in the French case, concerning Ms Bougnaoui who was dismissed for failure to remove her headscarf at work, took a wholly different view of the issues.
This Advocate General said that in her view Ms Bougnaoui’s dismissal was direct discrimination on grounds of religion or belief. She extended the prohibition on direct discrimination not only to being of a certain religion but to manifesting that religion, by, for example, wearing a religious symbol or religious dress.
Another employee who had not chosen to manifest their religion by wearing a headscarf at work would not have been dismissed.
She said that the only scenario in which she could envisage a blanket ban on the wearing of religious symbols to be justified, under a certain exception which can apply, was for health and safety reasons. The employer’s argument that it may lose clients if their staff wore a headscarf was not a sufficient justification. Commercial reasons alone cannot justify discrimination.
When looking at justifying indirect discrimination, the Advocate General said that the starting point should be that an employee has, in principle, the right to wear religious dress or symbols but that an employer might have the right to impose restrictions in certain circumstances.
An example might be where an employee’s role required face to face contact so a ban on total face covering may be necessary (as was considered to be the case for a primary school teacher in an earlier UK case).
Whether or not indirect discrimination can be justified will always involve a balancing act between the harm caused to the employee and the benefit gained by the employer.
What Happens Next?
We now must wait for the ECJ to give what will be its first ruling on religious discrimination.
In my view, the ECJ is more likely to follow the Bougnaoui opinion given that the reasoning of the Advocate General appears to be sounder.
The UK would be required to interpret UK law in line with this decision (as the UK remains at this time within the EU).
Dress codes have usually, in the UK, given rise to issues of indirect discrimination rather than direct discrimination. However, if the ECJ does follow Bougnaoui, we may see the widening of the concept of direct discrimination to include not only less favourable treatment because of a person’s religion but also because of their manifestation of the religion (e.g. wearing a headscarf). This is important because there is no defence or justification to direct discrimination unlike with indirect discrimination. Therefore, employers who impose a ban on wearing religious dress or symbols may have no defence to a claim.
Harriet Bowtell is a senior employment lawyer at Slater and Gordon Lawyers in London.
You can contact the work discrimination solicitors at Slater and Gordon Lawyers on freephone 0800 916 9060 or contact us online.