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Employers can ban headscarves and symbols ‘if approach is neutral'

Posted: 5th April 2017   In: Business Employment

Employers can ban the wearing of "any political, philosophical or religious sign" including headscarves as long as the requirement to “dress neutrally” applies to all employees.

However, the ban has to be based on consistent company rules; it cannot be suddenly introduced merely because of a request from a customer. Employers should also proceed with caution as it is quite possible that although such a ban might not amount to direct discrimination, there would always be a possibility of indirect discrimination taking place.

That was the guidance from the European Court of Justice following two high profile cases in Belgium and France.

The Belgian case involved the company G4S and one of its receptionists, Samira Achbita, who is a Muslim. At the time of her recruitment, there was an unwritten rule within the company that prohibited employees from wearing visible signs of their “political, philosophical or religious beliefs in the workplace”.

On 12 May 2006, after a period of absence from work due to sickness, Ms Achbita notified G4S that she would be returning to work on 15 May and that she would in future be wearing the Islamic headscarf.

The company reminded her that this “would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers”.

This requirement was later written into the workplace regulations.

On 12 June, 2006, Ms Achbita was dismissed because she did not accept the regulation and because of “continuing insistence of wearing the Islamic headscarf at work”. She challenged the dismissal and the Belgian court referred the case to the ECJ for a ruling on whether the banning of an Islamic headscarf, which arises from an organisation’s general internal rule, constitutes direct discrimination.

The ECJ ruled that it did not. It held that the G4S internal rule “treats all employees of the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally.

It said: “It is not evident from the material in the file available to the Court that that internal rule was applied differently to Ms Achbita as compared to other G4S employees.

“Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief.”

However, the ECJ added an important point for employers relating to the possibility of indirect discrimination. It said it was not inconceivable that in future a court might conclude that “the internal rule introduces a difference of treatment that is indirectly based on religion or belief, should it be established that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage.

“Nevertheless, such a difference of treatment would not amount to indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary.”

The second case involved Asma Bougnaoui, who lost her job as design engineer with the French firm Micropole after a customer complained about her wearing an Islamic headscarf.

The ECJ ruled: "The willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement."

The French courts will now have to decide whether Micropole dismissed Ms Bougnaoui purely to satisfy the customer who complained or because of a company policy prohibiting the wearing of religious symbols.

Please contact Jackie Cuneen if you would like more information about the issues raised in this article or any aspect of employment law.

Posted by: Jackie Cuneen
Employment
Luton Office