According to the Advocate General, the short answer to this question is: yes, they can. While this Opinion is not binding on the courts, it will almost certainly influence the ever-increasing number of cases concerning religious dress in the workplace.
In Achbita and another v G4S Secure Solutions NV, a receptionist working in Belgium began wearing a headscarf to work. When asked to remove it to comply with the company dress code, which banned employees from wearing any visible religious, political or philosophical symbols, she refused and was dismissed.
The Advocate General distinguished between an individual’s physical characteristics, including gender, ethnic origin or age, and behaviour that the individual may exhibit, such as what they wear, stemming from their convictions. For example, in this instance the employee had initially been willing to remove her headscarf at work but had then changed her mind. Many employees will, of course, refer to the fact that the law protects not just their faith but the manifestation of that faith. They would argue that their religion or belief mandates particular dress and this is not something that can simply be ignored while at work. The Advocate General was however influenced by the fact that the company’s policy was a blanket ban, which applied to all religions equally and had been implemented consistently. There was also an element of neutrality because the rule applied to political and philosophical beliefs, not just religious ones. In terms of indirect discrimination, such a rule was capable of justification in that G4S wanted to create an image of religious and ideological neutrality.
The Advocate General’s Opinion suggests a ‘moderate’ expression of religion is more likely to be tolerated. When implementing the relevant European law, the UK Parliament and courts have tended to show a greater tolerance to religious dress than other European countries. Not least because of this inconsistency, an employer’s rights in this area remain far from clear. Nonetheless, the Advocate General clearly supports a move across the board towards separating an employee’s religion or belief and the way in which they express this.