Workplace clothing issues – can you ban headscarves?

Banning headscarves does not amount to direct discrimination (but take care with dress codes) ...

An EU Court has decided that an employer's dismissal of an employee for refusal to comply with a "no headscarf" policy when meeting customers was not direct discrimination. (See the Belgian case: Achbita and anor -v- G4S Secure Solutions NV (Case C-157/15))

The employer had an unwritten rule that headscarves could not be worn while meeting clients. This was part and parcel of the employer's rule that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. The employer later added this rule to its written workplace regulations. When the employee still insisted on wearing a headscarf, the employer dismissed her.

The Court of Justice of the European Court's (the CJEU) decision that this dismissal was not direct discrimination, is not a straightforward decision for employers. It does not mean that employers are free to ban headscarves in the workplace – or any other items of religious significance such as a crucifix.

In the Achbita case, the ban on wearing headscarves was part of the employer's wider ban of visible signs of political, philosophical and religious beliefs when meeting clients that applied to all employees. The ban did not treat Muslims any less favourably than other religions. The employer's aim to ensure a neutral environment for clients was legitimate provided it was enforced sympathetically and consistently across all employees. The ban was not therefore direct discrimination. However ...

A warning for employers

Employers must take care when making rules relating to dress in the workplace. Had there been no general policy in the Belgian case, the employee might have successfully argued that the headscarf ban was aimed at and disadvantaged her as a Muslim – thereby amounting to indirect discrimination on the grounds of religion.

So if, for example, the employer had banned its employee (and other Muslims) from wearing a headscarf in response to a single client's complaint, that ban would likely have constituted direct discrimination.

Transfer the employee into another role?

One issue that arose in the Achbita case was whether the employer should have offered the employee a job in a different, non-client facing role in which she would have been able to wear a headscarf. The CJEU did not address this issue directly – but employers would be wise to consider whether there is an alternative role for an employee unwilling to comply with a legitimate dress code.

Workplace policies

Employers should consider workplace clothing policies carefully to ensure that there is a legitimate reason for their implementation and that they discriminate neither directly or indirectly against one group of employees (e.g. Muslims, Christians, Sikhs). There must be a genuine and determining occupational requirement to justify clothing bans.

Tips for employers on dress codes

• Read our guide to dress codes: Checklist: dress codes in the workplace.
• Consider workplace clothing policies carefully. Is there a legitimate reason for their implementation?
• Is there a genuine and determining "occupational requirement" to justify clothing bans?
• If an employee refuses to comply with a dress policy, is there an alternative role for that employee elsewhere in the business?
• If you have not reviewed your workplace policies recently, consider a review.

Further information

Press release of the decision in Achbita and anor -v- G4S Secure Solutions NV (Case C-157/15)

Contacts

For more information on discrimination or to discuss how we can update your workplace policies, contact Susan Mayall on 0161 684 6948 or make an enquiry. 

Posted 24 March 2017

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.