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Religion and dress codes

Applying a provision, criterion or practice (“PCP”), such as a dress code policy, which puts a person with a religion or belief at a particular disadvantage compared to other persons will constitute religious indirect discrimination under the Equality Act 2010 unless the PCP can be justified as a proportionate means of achieving a legitimate aim.

Recent opinions

There have been two recent conflicting opinions made by Advocate Generals regarding the wearing of an Islamic headscarf.

Achbita and another v G4S Secure Solutions

In this case, G4S implemented a policy of complete neutrality whereby there was a ban on all employees from wearing any visible religious, political or philosophical symbols in the workplace. Ms Achbita began to wear a headscarf at work and was subsequently dismissed for her refusal to abide by the company’s dress code. Ms Achbita brought a claim for discrimination.

The Advocate General gave the opinion that although the ban may amount to indirect discrimination, she thought it was justified by the employer’s legitimate objective of religious and ideological neutrality.

Bougnaoui v Micropole SA

Ms Bougnaoui worked as a design engineer for Micropole and was asked to remove her headscarf after a customer made a complaint. Ms Bougnaoui was subsequently dismissed when she refused to comply with the request.

In reaching the decision, the Advocate General balanced the business need for freedom to pursue commercial interests with the individual right to wear religious symbols but in this instance found that there was no apparent justification for the ban on the headscarf.

Arguably, the reason for the difference in the two cases above is because in Achbita, there was a policy applied equally and strictly to all employees whereas in Bougnaoui, the employer had asked for the employee not to wear the headscarf in reaction to a discriminatory comment made by a customer. Advocate Generals give opinions in cases before they are considered by the European Court of Justice however, their opinion is not binding. It will be interesting to see what approach the ECJ takes when deciding these two cases given the conflicting views.

Human Rights

Eweida v British Airways plc was an English case similar to the above.

British Airways operated a policy that forbade the wearing if visible jewellery unless this was impossible. For example, a turban was permitted but bangles were to be covered by sleeves if possible.

Ms Eweida was a Christian who wanted to wear a symbol of the cross on a necklace visibly as a symbol of her faith. She brought a claim for indirect discrimination.

The Employment Tribunal rejected the claim and this was upheld by the Court of Appeal which felt that the policy was justified as a proportionate means of a legitimate aim.

However, the European Court of Human Rights held that Ms Eweida’s right to manifest her religious beliefs under Article 9 of the European Convention on Human Rights had been interfered with and could not be objectively justified. Although British Airways had a legitimate aim to project a certain corporate image, it had been afforded too much weight as the symbol would not have impacted on Ms Eweida’s professional appearance.

Conclusion

Employers can set dress codes but it is always important to carefully consider discrimination issues. If a dress code is going to affect employees manifesting their religion is there a legitimate reason for this such as health and safety concerns?

If you would like advice on dress codes, please feel free to email us or contact us on 0191 282 2880 for a no obligation chat.

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