A neutral ban on the wearing of all visible religious signs is
not direct discrimination, according to the European Court of
Justice. A receptionist in Belgium wanted to wear an Islamic
headscarf while at work. Her employer had a policy banning any
visible signs of political, philosophical or religious beliefs. The
internal rule treated all employees in the same way, requiring them
all to dress neutrally. As a result the employee's dismissal
did not amount to direct discrimination.
However the Court did not rule out the possibility the dress
code might amount to indirect discrimination. Although apparently
neutral, its results may in fact disadvantage people of a
particular religion. An employer's desire to project an image
of political, philosophical and religious neutrality towards its
customers can be a legitimate aim. However the Court queried
whether it was possible to offer the employee a post not involving
any visual contact with those customers, rather than dismissing
her. If this was a possibility, then the dismissal probably amounts
to indirect discrimination.
What can employers in the UK take from this decision? First,
when applying a dress code rule, work out exactly what it is you
are trying to achieve. Secondly, consider whether you are applying
the rule in a genuine and consistent way. For example if your main
motivation for the rule is customer perception, do you need to
apply the rule to non-customer facing employees?
The Court considered a similar French case at the same time,
involving a design engineer providing IT consultancy services to
clients. A client complained about the employee wearing a
headscarf. The Employer asked her not to wear the headscarf next
time she met those clients. The employee refused and was dismissed.
The question for the Court was whether the wishes of a client, who
didn't want to deal with someone wearing an Islamic headscarf,
could be a defence to a claim of discrimination. Unsurprisingly,
the answer was no.
Case C-157/15 Achbita v G4S Secure Solutions and Case
C188/15 Bougnaoui v Micropole Univers.
The material contained in this article is of the nature of
general comment only and does not give advice on any particular
matter. Recipients should not act on the basis of the information
in this e-update without taking appropriate professional advice
upon their own particular circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
Case law concerning the Agency Worker Regulations remains limited. We recently advised a recruitment business involved in a dispute with a "temp" and a hirer regarding who was liable for an alleged breach of AWR Regulation 5.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).