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Workplace Ban on Religious Dress (Including Headscarves) Not Direct Discrimination, Court Rules

By Practice Group Leader, Employment and Partnership

The European Court of Justice has ruled in two cases relating to the wearing of headscarves that a ban on religious symbols and dress at work which applies to all staff can be lawful.

The ban cannot be based on the wishes of a customer but is allowed so long as it is based on internal company rules requiring all employees to dress neutrally. This means no wearing of anything that contains a religious, political or philosophical sign – including headscarves.

Previously, courts in both Belgium and France had referred questions to the European Court of Justice asking whether or not banning headscarves at work was discriminatory.

Belgian company G4S dismissed Ms Achbita for failure to abide by their dress code when she refused to take off her headscarf, which she wore for religious reasons, during working hours.

In France, Ms Bougnaoui was dismissed for her failure to remove her headscarf at work too.

Whether or not these cases amounted to direct or indirect discrimination by the employers was left to the European Court of Justice to decide. The court in reaching its decision looked at the Equal Treatment Framework Directive which has been implemented by the UK in the prohibition of discrimination because of religion or belief in the Equality Act.

The court in this case ruled that a policy which prohibits the wearing of any religious, political or philosophical symbol at work is not direct discrimination. This is not a surprising decision because such a policy does not target any one particular group for different treatment. 

However, the court went on to say that this kind of ban may amount to indirect discrimination because it may put certain groups – such as Muslim women who wish to wear headscarves - at a particular disadvantage. 

An employer can seek to justify indirect discrimination by showing that the policy has a legitimate aim and is a proportionate and necessary means of achieving that aim.

The court said that the pursuit of a policy of political, philosophical and religious neutrality in its relations with customers might be justifiable in the case of this Belgian employer but it left it for the Belgian court to decide that on the facts. 

It is difficult to see how a UK employer could justify such a blanket ban on religious symbols and dress at work when UK society is generally accepting of people wearing religious dress and symbols in schools, private and public sector workplaces and public spaces and no such neutrality is expected.

Claire Dawson is an 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.

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