Does An Employer Ban On Wearing The Islamic Headscarf Amount To Discrimination?
14 March 2017
In a judgment today on two cases where employees were banned from wearing a headscarf at work the European Court of Justice has ruled that such a prohibition does not constitute direct discrimination where the rule is applied equally to all employees. In the first case (Achbita v G4S Secure Solutions) the ECJ held that it might, however, be indirectly discriminatory. But, if the rule is in place to project an image of neutrality towards customers, especially where the ban involves only those workers who come into contact with customers, then it is serving a legitimate aim. Provided the way in which the ban is implemented is appropriate and necessary it is likely to be objectively justified.
In the second case (Bougnaoui v ADDH) the Court was asked to determine whether a ban imposed to satisfy a customer’s wishes could amount to a genuine occupational requirement justifying discrimination. The Court noted that such justification is available only in very limited circumstances, not covering situations where subjective considerations, such as an employer’s willingness to take account of customer wishes, apply.
Both cases have been referred back to the domestic courts.
Whilst policies which may indirectly discriminate can be justified, employers should exercise particular care in establishing dress codes, balancing the rights of individuals with legitimate business needs. Remember that individual rights include the right to manifest religion, as considered by the European Court of Human Rights in the case of Eweida and others.
The Equality and Human Rights Commission has recently published extensive guidance for employers on religion or belief.