Canada: Dress Codes And Religious Discrimination In The Workplace - Understanding The Issues

Last Updated: March 28 2017
Article by Jane Fielding and Vivienne Reeve

Most Read Contributor in Canada, October 2018

With religious discrimination at the forefront of the news following the recent ruling by the European court, our employment experts Jane Fielding and Vivienne Reeve discuss two recent European cases and the impact they could have for UK employers.

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Jane Fielding: Hello, welcome to Gowling WLG's Podcast on religious discrimination in the workplace. My name is Jane Fielding and I'm Head of the Employment, Labour and Equalities Team here at Gowlings and I'm going to be talking to one of our Senior Associates, Vivienne Reeve, about the impact of two recent European cases about wearing the hijab, the Islamic headscarf, in the workplace. We're going to talk about the implications of these two cases for employers in the UK dealing with employees who want to manifest their religious beliefs in the workplace and how far employers have to go to accommodate that.

So Vivienne what are these two cases telling us? What do we know now that we didn't know before they came out?

Vivienne Reeve: Thanks Jane. Well in the first case of Bougnaoui v Micropole and as a reminder Miss Bougnaoui was told to remove her headscarf after a client of Micropole complained about her wearing this. She refused and she was dismissed. The Court's view was that if there was no neutrality policy in place then requiring her to remove her headscarf would be an act of direct discrimination. The Courts were quite clear that the genuine occupational requirement should be dictated by the activities of the employer not a subjective customer view so the Court was clear a client's subjective wish cannot be a genuine occupational requirement.

In the second case of Achbita. This lady was a receptionist. After working for G4S for some time she decided that she wanted to wear her headscarf. She was asked to remove it to comply with the company's neutrality policy which said that employees should not show any visible sign of political or religious beliefs in the workplace. Again she refused and she was dismissed.

We were therefore looking at an issue of potential indirect discrimination rather than direct discrimination as the policy applied to the whole workforce.

So there were two questions. Could this be justified? The first question is was there a legitimate aim? The legitimate aim of G4S in wishing to show ideological and religious neutrality to its customers was accepted fairly easily by the Court. The second more tricky question of proportionality was looked at and here we have to look at whether it was appropriate and necessary for the employer to impose this policy and the considerations which the national court will have to consider are the size of the headscarf, so the visible sign of a religion, what the employer does, what role the employee within that business has and also whether the business could achieve its legitimate aim by dealing with it in a less discriminatory way.

Jane: So in practice is there anything now that employers should be doing proactively to deal with these cases?

Vivienne: I think these cases are a good trigger for businesses to consider their ethos, their client base, what are staff doing? If we start from a basis of tolerance do we need to restrict what people wear in the workplace? If you have staff who are working lifting, there are health and safety concerns. If they are lifting people in hospitals or care homes, if they are working on construction sites you can see there may be a safety element. Equally if they are working in a teaching environment or there is a need to communicate using facial communication as well as vocal communication you can see how it may be easier to justify a wish for a neutrality policy.

But I think it's a good time to ask and if you are not dealing with one of those situations, do you need to restrict? Could inclusion be more beneficial for your entity and your customer base or could you agree a compromise? Could you agree that people can wear headscarves but perhaps in corporate colours for example?

Faith leaders have raised over the last couple of days questions focused on corporate restriction dominating over individual freedom and so I think in this space at this time it's a good time to think about what you actually need to do.

Jane: So perhaps a good time to review your dress code policy generally?

Vivienne: Absolutely.

Jane: Because this will be part of it.

Vivienne: Yep.

Jane: And turning finally to Brexit. The dreaded word at the moment, both of these cases were European cases and, as you've just said, they've both been sent back to their domestic courts for the guidance of the Court of Justice to be applied by the national courts. If one of these cases came up in an employment tribunal in the UK how far out of line with UK law are those two cases or do we already have a body of case law that covers this?

Vivienne: We do, Jane, and I think the judgment is in line with our UK body of case law. Both the cases, as you say will be sent back to the national courts to decide and I think the key thing here is that these cases will always be fact-specific. If you have a neutrality policy these cases don't say that you can ban headscarves, that's not the point. The point is in each circumstance you need to consider whether it is proportionate to impose a policy which has an impact on what people can wear at work.

Jane: So whatever happens with Brexit we will have that domestic case law still and we'll need to apply it.

Vivienne: That's exactly right.

Jane: Thank you Vivienne.

Well hopefully that will help employers understand a bit more about those cases because there has been lot of heat and light about them but actually the bottom line is, from a UK law perspective, they don't really change anything. It's always fact-specific and you've got to have an objective justification if the policy impacts disproportionately on one set of religious beliefs or manifestation of those religious beliefs in the workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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