The European Court of Justice has just ruled on two cases involving female employees in France and Belgium who were dismissed for refusing to remove their Islamic headscarves in the workplace. The headline decision you may have seen was that, in some circumstances, banning a headscarf at work does not constitute direct discrimination.
The press and social media went into overdrive at this news, with some claiming that a ban on religious and political items in the workplace had been authorised by the ECJ. "Burka ban in workplace IS legal – EU court rules it is NOT discrimination" screamed the headline in the Express on 14 March.
Read beyond the headlines though and it is clear that the actual judgment is far more nuanced. Put simply, and not surprisingly, it remains the case that employers can't just ban headscarves on a whim. But what are the facts that we should take away from this and how (if at all) does the ruling change the enforceability of religious dress codes in the workplace?
Achibita v G4S
In the first case, Achibita worked for G4S in Belgium as a receptionist. G4S had a policy of neutrality when it came to its dress code, stating that employees "are not permitted to wear any religious, political or philosophical symbols whilst on duty". Achibita was dismissed after refusing to remove her headscarf at work.
The ECJ held that G4S had applied the dress code policy evenly across the company and there was no evidence it had treated Achibita differently from any other employee. Since the policy prohibited all religious signs, G4S was not treating one religion less favourably than another and there was no direct discrimination.
The ECJ did state that a policy on religious items could constitute indirect discrimination if it was shown that a person adhering to a particular religion or belief was put at a particular disadvantage, unless that policy could be objectively justified by a legitimate aim (the standard defence to an indirect discrimination claim). In this case, the ECJ decided that trying to pursue an image of political, philosophical and religious neutrality with its customers was legitimate. Whether it went no further than necessary would depend on whether it was limited to employees in customer facing roles. The case has been sent back to the Belgian court to consider whether Achibita could have been offered a role not involving customer contact.
Bougnauoi v Micropole
In the second case, following a customer complaint about Bougnauoi wearing a headscarf, Micropole requested that she remove her headscarf in future dealings with the customer. Bougnauoi refused and was dismissed.
In this case, it was not clear if a policy of neutrality of dress existed as in the Achibita case. If it did not, the ECJ held that direct discrimination could arise, leaving 'genuine and determining occupational requirement' as the only justification for the dismissal. This justification is extremely difficult to establish and the ECJ held that subjective considerations, such as a customer's request for a Muslim employee not to wear a headscarf, would not invoke it.
Analysis and impact on UK law
Personally, I found something intrinsically uncomfortable about the ECJ's reasoning in the Achibita case. Its rationale seems to be that, just because an employer would have dismissed (for example) a Sikh wearing a turban or a Christian wearing a cross, that somehow makes it ok to dismiss a Muslim wearing a headscarf. Although strictly speaking logical, it feels morally at odds with the emphasis on diversity which our discrimination legislation seeks to protect. The suggestion that it might be possible to objectively justify such a policy by keeping someone who wears a headscarf behind closed doors and away from customers also strikes me as undesirable territory into which to stray.
I wasn't the only one to feel concern about this case. On 15 March, an urgent statement on the decision was requested from the Parliamentary Under-Secretary of State for Women and Equalities, Caroline Dinenage. She re-emphasised the Government's opposition to discrimination and stated that, notwithstanding the ECJ's decision, "the UK's legal position has not changed". Ms Dinenage referred to existing guidance for employers on religion and belief from the EHRC (available here) and said this would be reviewed and updated as necessary to take account of the ECJ's recent decision. However, she was clear that employers should not mistakenly think that the rulings gave them any authority to sack public-facing staff who wore headscarves or any other religious symbols.
From a legal point of view, the judgment in Achibita also seems at odds with the ruling made by the European Court of Human Rights in Eweida v United Kingdom, in which the wearing of a visible cross was held to be an employee's right to manifest freedom of religion (subject to proportionate limitations such as health and safety). Perhaps this conflict can in part be explained by the difference in culture found in France and Belgian (where these cases originated) compared to the UK. These countries have a deep rooted concept of secularism (laïcité), which encourages the absence of religious influence in government and other affairs. This might be why the ECJ found that a policy of religious neutrality was a legitimate aim in the Achibita case. It seems much more uncertain that a British Tribunal, against the backdrop of religious diversity and tolerance found in the UK, and particularly given the Government's stated position on the case, would come to the same conclusion.
So where does this leave employers in the UK? Actually, not far from the advice I would usually give in these sort of situations: unless it can clearly be shown that the wearing of religious items is genuinely interfering with employees' ability to carry out work safely and properly, then just don't go there.