It is a well-established right under the Equality Act 2010 that employees in the UK have the right not to suffer less favourable treatment on the grounds of religious belief. However, debate surrounding what exactly constitutes religious discrimination has been ignited again following the much publicised judgments regarding the prohibition of Islamic headscarves delivered by the European Court of Justice (ECJ) this week. Whilst we remain in the EU, the rulings of the ECJ will continue to be carefully monitored by those in the Employment sector and these cases provide an interesting approach to the issue of religious discrimination and workplace rules regarding dress and appearance.
In the case of Achbita v G4S Secure Solutions it has been widely reported that the ECJ has ruled that employers can prohibit their employees from wearing visible signs of political, philosophical or religious belief provided that the Company policy bans all such manifestations of belief without distinction. Essentially it will not amount to ‘direct discrimination’ for employers to ban their staff from wearing religious symbols in the workplace, provided that they ban all symbols, regardless of the faith to which they relate.
However that does not mean that employers are free to introduce such a ban without potentially being guilty of religious discrimination.
Under the Equality Act 2010 direct discrimination is just one form of prohibited conduct and what the ECJ decided does not mean that such a ban would not be unlawful as amounting to ‘indirect discrimination’. The difference between the two forms of discrimination is that indirect discrimination can be justified if the employer can show that it is a proportionate means of achieving a legitimate aim. In this regard the ECJ suggested that the wish to project a neutral image towards customers could be a legitimate aim to be balanced against the discriminatory impact of a ban on religious clothing or symbols. However, to avail itself of this protection there must be a policy which addresses the issue and for it to be proportionate consideration would have to be given to alternative arrangements for employees who were placed at a disadvantage, for example could they be employed in a non-public facing role?
The other case Bougnaoui and anor v Micropole SA which was decided at the same time by the ECJ involved different circumstances as there did not appear to be any policy that the employer applied to all prohibiting the wearing of religious symbols. The employer issued the instruction not to wear an Islamic scarf only because a customer had objected. This was not therefore a policy applied to all that could be justified.
These cases will be of particular interest to employers in sectors where the neutral appearance of their employees is of particular importance, such as in Retail and Hospitality. Above all the decisions highlight once again the importance of having a written policy that sets out the rules regarding what is and what is not considered appropriate clothing for the particular work and taking into account how those rules may impact staff.
For further information, please contact:
Elizabeth Ebrahimi, associate, Employment
T: 0161 836 7954