The ECJ has today ruled (in two cases) that a dress code (whether formal or informal) which has, at its heart, the principle of projecting neutrality to the company’s client or customer base, is not directly discriminatory against any given religion. It is however potentially indirectly discriminatory unless the employer can objectively justify the dress code. That means the employer must show both a legitimate aim (here, neutrality to customers and clients) and demonstrate that their way of achieving that aim is both appropriate and proportionate. This is a balancing act and could potentially differ for different groups of employees – for example, can the same legitimate aim be applied to those who have no contact with customers as opposed to those who are in customer facing roles?
Both cases are returning to their local courts to apply the ECJ decision, so the Belgian and French courts will have the final say. The two cases, while applying the same principles, could well end up with different outcomes as the G4S v Achibita case related to a dismissal for failing to follow the company’s dress code, which the company will have to show was an appropriate and proportionate means of achieving their stated aim of projecting neutrality. In the second case of Bougnaoui v Micropole, Ms Bougnaoui was dismissed because a client did not want her to wear a veil, rather than because of an internal rule. In such circumstances it is difficult to see that any successful defence can now be put forward.
Once the UK has extricated itself from Europe, we are unlikely to be bound by these decisions. Discrimination law is, however, so ingrained in our employment practices that decisions like this are unlikely to be diluted by Brexit.