A ban on all religious dress that prevents a Muslim woman from wearing an Islamic headscarf is not directly discriminatory. If not justifiable, it may be indirectly discriminatory.

The Facts

The European Court of Justice has ruled in two highly publicised cases, referred by courts in Belgium and France, about bans on religious dress in the workplace.

Achbita and another v G4S Secure Solutions NV

Ms Achbita was employed by G4S Secure Solutions as a receptionist. G4S had an unwritten company rule that employees were not allowed to wear any religious, political or philosophical symbols while on duty. This later became a written rule.

In April 2006, Ms Achbita announced that, in the future, she intended to wear a headscarf during working hours, for religious reasons. She was subsequently dismissed because of her refusal to abide by the dress code by removing the headscarf. She brought a discrimination claim. The Belgian court referred a preliminary question to the ECJ, asking whether the headscarf ban amounted to direct discrimination under European legislation.

The ECJ held that the ban did not constitute direct discrimination, as there was no evidence that Ms Achbita was treated differently compared to any other worker.

However, the ECJ did consider that the ban was capable of constituting indirect discrimination. It expressed its view that, where the employer had a policy of upholding political, philosophical or religious neutrality in customer-facing roles, this must be considered a legitimate aim. Whether the indirect discrimination was justifiable, however, would be up to the national court to determine. The ECJ gave guidance on this.

Bougnaoui and another v Micropole SA

Ms Bougnaoui is a Muslim IT engineer who worked for Micropole in France. Her employer had strict rules about staff expressing or displaying personal beliefs when with customers. After a site visit, a customer complained that she had worn her headscarf, and requested that she did not do so in the future. Ms Bougnaoui refused to comply with Micropole's wishes, and she was dismissed. She brought a claim of religious discrimination in the French courts. The French courts referred questions to the ECJ asking whether, on the assumption that her treatment was discriminatory, it could be justified as being a genuine occupational requirement.

The ECJ held that a "genuine and determining occupational requirement" cannot include an instruction from a customer not to wear an Islamic headscarf. The dismissal of the worker was therefore direct discrimination. The focus on this case was entirely on whether the employer's decision could be justified on the basis of there being a genuine occupational requirement. The impact of the decision in relation to genuine occupational requirements is limited in the UK, as UK legislation is narrower in this regard.

The ECJ distinguished this decision from the Achbita case on the basis that Achbita did not concern a customer's objection, but a general rule implemented by the employer.

What does this mean for employers?

France and Belgium are secular countries. They have different social and cultural norms to the UK which affect their views on religious neutrality at work. As such, we are less likely to see a blanket ban on religious clothing and symbols in the UK.

In practice the Achbita and Bougnaoui cases do not take us much further than the position established in the high profile case of Eweida v British Airways in 2013.

That case concerned a dispute between British Airways and an employee over uniform policy - the employee wished to wear a visible cross outside her uniform. The European Court of Human Rights found that BA's wish to project a certain corporate image was legitimate; however, on balance it could not justify this restriction on Ms Eweida's religious freedom. This was in contrast to another case heard as part of the same proceedings, Chaplin, where it was held that a ban on a nurse wearing a crucifix on her uniform was justified for health and safety reasons.

So, essentially employers need to ensure there is a balance between the reason for any restriction in a dress code and the disadvantage likely to be suffered by an employee. In all cases involving potential indirect discrimination, the reasons for the restrictions in the dress code will be scrutinised, and the employer will be expected to have given consideration to any alternatives.

For further information on dress codes in light of these decisions please see our FAQs.