A recent ruling by the European Court of Justice (ECJ) held that an employer can have a neutral dress policy preventing workers from wearing any political, philosophical or religious signs.
The case: Achbita v G4S Secure Solutions
G4S (the employer) has a neutral dress policy in place whereby employees were banned from wearing any political, religious or similar signs in customer-facing roles. A Muslim employee working as a receptionist wanted to wear a headscarf but G4S maintained that she could not wear it whilst carrying out her role and dismissed her when she continued to do so.
The ECJ considered whether the neutral dress policy amounted to direct discrimination on the grounds of religion. As the policy prohibited all religious signs it did not treat one religion less favourably as against another and so the ECJ said this did not amount to direct discrimination.
The policy did however result in a difference in treatment which the ECJ held was indirectly based on religion. This is because Muslims are placed at a particular disadvantage compared to other religions whom do not wear religious dress. G4S wished to project an image of neutrality and the ECJ found that this constituted a legitimate aim for any potential indirect discrimination, provided that the policy only applied to customer-facing employees.
The question for employers to consider now is - to what extent it is permissible to require employees to dress neutrally?
A practical approach for employers
This ruling opens the way for employers to have neutral dress policies but only in certain circumstances and care must be taken to ensure that any claim for discrimination on the grounds of religion is avoided.
Any neutral dress policy must:
- Be a clearly documented internal company policy (not based on the wishes of a customer)
- Apply equally to employees of all religions
- Have a legitimate aim if it has the effect of placing a particular disadvantage on employees of one religion
- Apply only so far as is necessary to meet that legitimate aim.
Employers can therefore adopt a neutral dress policy for the purpose of projecting an image of neutrality to customers, provided that it only applies to those in customer-facing roles. In order to do so, employees must be informed of the changes and any new policy should be added to the employee handbook.
Dealing with a breach of a neutral dress policy
Where an employee breaches a neutral dress policy the employer will also need to exercise caution before taking any action. It is important to remember that the policy does still amount to indirect discrimination and a claim can therefore only be defended if the policy in place has a legitimate aim and is proportionate.
While it may be a legitimate aim to portray an image of neutrality, it may not be proportionate to dismiss an employee for breaching the policy. The ECJ remarked that G4S should have considered moving the employee to a different, non-customer-facing role.
Brexit - application of the ECJ ruling
The ECJ is a court of the European Union. At present UK courts must take ECJ rulings into consideration, however it remains to be seen what the position will be following the UK's exit from Europe.