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Headscarves and discrimination

Background

You may recall our bulletin last year which discussed Attorney General opinions on religious discrimination including an opinion on the recent European Court of Justice (“ECJ”) case that has led to these headlines:

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 (“the AG”) gave the opinion that the ban did not amount to direct discrimination as it was a policy of neutrality that applied to all employees.

ECJ decision

The case was referred to the ECJ which recently ruled that, in the Achbita case, the dismissal of the employee for wearing her headscarf at work did not amount to direct discrimination. This was because the dress code policy applied to all employees equally, regardless of religion or beliefs. It therefore did not treat one religion less favourably than another.

However, the ECJ did comment that a policy of this type could be indirectly discriminatory unless it can be shown to be a proportionate means of achieving a legitimate aim. The AG’s opinion had been that although the ban may amount to indirect discrimination, it was justified by the employer’s legitimate objective of religious and ideological neutrality to customers and clients with which the ECJ agreed.

Comment

Employers should not assume from the headlines that applying restrictions on wearing any religious symbols will protect them from all discrimination claims. Employers need to consider whether a policy prohibiting employees manifesting their religious beliefs is actually a proportionate means of achieving a legitimate aim. For example, health and safety reasons could justify such a policy but simply imposing a ban without good reason will potentially amount to indirect discrimination.

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

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