In the UK, employers are generally free to set whatever dress code for staff they wish, as long as the requirements are not discriminatory. Employer restrictions on the display of religious symbols in the workplace have sparked a number of religious discrimination cases, including the well-known case of Eweida v British Airways about a uniform policy which banned a Christian employee’s cross pendant necklace.

The European Court of Justice has recently handed down two decisions centred on employees who wear Islamic headscarves. The two cases, which were heard together, had previously resulted in two opposing Opinions from different Advocates-General. In Achbita and another v G4S Secure Solutions NV, it was asked to consider whether a Belgian company’s dress code which banned employees from wearing any visible religious, political, or philosophical symbols in the workplace constituted direct discrimination.

The ECJ held that the dress code was not direct discrimination (even though it resulted in preventing a Muslim employee from wearing the Islamic headscarf at work) as the dress code applied to all groups (i.e. not one particular religion). However, the ECJ considered that the ban could potentially amount to indirect discrimination and returned the case to the Belgian courts to consider that aspect of the case.

The ECJ’s decision in Achbita contrasts with its conclusion in the similar case of Bougnaoui, where the ECJ held that requiring an employee not to wear the Islamic headscarf in response to a customer complaint did constitute direct discrimination.

The Achbita case

Ms Achbita was a receptionist with G4S. When she joined G4S, the company had an informal (and unwritten) dress code rule which prevented employees from wearing visible signs of their religious, philosophical or political beliefs whilst at work. Ms Achbita chose initially to wear her headscarf only outside work.

Three years later, Ms Achbita informed her employer that she wished to wear the Islamic headscarf at work as well. At around the same time, G4S formalised its dress code policy (with agreement from the Works Council) which stated that employees were not allowed to wear physical signs of their political, philosophical or religious beliefs and/or from engaging of any such observance of such beliefs in the workplace. Ms Achbita continued to express her wish to her employer that, as a Muslim, she be permitted to wear her headscarf at work. Shortly thereafter, she was dismissed by the company because of her refusal to not wear the headscarf whilst at work.

Ms Achbita raised claims relating to her dismissal, including claims for direct and indirect religious discrimination. She was unsuccessful in these claims in the Belgian courts but, on appeal, the Belgian Supreme court referred a preliminary question to the ECJ, and asked the ECJ to consider whether the company’s dress code and ban on wearing religious symbols at work amounted to direct discrimination.

Under UK law, direct discrimination arises where because of a protected characteristic (in this case religion or belief) a person (A) treats another (B) less favourably than (A) would treat others. The concept of direct discrimination originates from the EU Equal Treatment Directive and all EU member states have implemented a form of protection against direct discrimination into their equality legislation.

Here, the ECJ found that G4S’ religious symbols ban did not constitute direct discrimination. The key basis for their conclusion was that they did not consider that Ms Achbita had been treated differently in comparison to any other worker, as the dress code applied to all workers and all religions (and political or philosophical beliefs) and did not target any particular group.

Contrast to the Bougnaoui case

Achbita can be contrasted with the ECJ’s decision in the case of Bougnaoui & Anor v Micropole SA, announced on the same day.

Ms Bougnaoui worked as an engineer for Micropole. As part of her role, she was required to spend some of her working time at client sites. Ms Bougnaoui was a Muslim and wore the Islamic headscarf (and had done so from the start of her employment). When Micropole had recruited Ms Bougnaoui, it had informed her that, due to the customer-facing nature of her role, she might not be able to wear her headscarf when in contact with clients. However, the company did not have a formal dress code as such (and did not have a dress code policy that applied to everyone).

After one site visit, Micropole received a complaint from the client that Ms Bougnaoui had worn an Islamic headscarf, and requested that this not happen again. Micropole asked Ms Bougnaoui to agree to not wearing the headscarf on client site visits, and, when she refused, she was dismissed.

In this case, Micropole had argued that given the customer’s objection, there was a “genuine determining occupational requirement” which allowed them to operate a policy which could be potentially discriminatory on grounds of religion. Generally speaking, genuine and occupational requirement exceptions are limited and rare (a typical example would be requiring actors to be of a particular race if the role to be played requires that). In this case, it was found that acting upon the particular wishes of a customer who objected to the wearing of the headscarf could not be a genuine occupational requirement. As such, there had been direct discrimination in this case.

Therefore, it appears that acting on the objection of a customer resulting in a religious symbols ban will be direct discrimination, but a blanket ban which applies to everyone does not. However, in practice, the distinction between the two scenarios may be narrow. Critics of the Achbita case have raised concerns that it raises the possibility of employers introducing policies which may appear universal, but which may have the objective of addressing customer concerns regarding particular groups, may undermine the key point of the Bougnaoui ruling: acting on an instruction from a client does not itself justify direct discrimination.

What about indirect discrimination?

This is important, and a point missed in much of the media reporting of the decision. The ECJ found that there had been no direct discrimination in Achbita, but it considered that it was possible that the dress code could be indirectly discriminatory.

Indirect discrimination occurs where there is a provision, criterion or practice which applies universally, but may have a disproportionate adverse impact on a particular group who share a protected characteristic. In this case, although the dress code applied to all employees, there was a risk that it would have a disproportionate impact on particular religious groups, such as Muslims who wished to wear the Islamic headscarf.

Unlike direct discrimination, indirect discrimination can be objectively justified if the provision, criterion or practice is in pursuit of a legitimate aim and is proportionate.

In this case the ECJ considered that the company’s wish to maintain neutrality and brand image was a legitimate aim.

However, that is not the end of the story, as the ECJ referred the case back to the Belgian courts to determine whether, having established a legitimate aim, the aim was appropriate and necessary. In doing so, the question of proportionality comes in to play. For example, the ECJ considered that questions that the Belgian national courts would have to consider whether the company’s policy was proportionate and necessary in terms of to whom it applied (for example, the whole workforce or customers facing roles only?), and whether prior to dismissing Ms Achbita, alternatives had been considered such as moving her to a non-customer facing role.

What can employers do now?

Although the Achbita case has attracted a lot of media attention, and has been widely criticised by religious rights groups who have perceived it to be permission for employers to discriminate on the grounds of religion, its scope is relatively narrow. Given that the workplace dress code policy applied to all employees in Achbita, it is not surprising that it did not meet the test for direct discrimination, and has not significantly altered case law in this area.

However, the greater issue with bans on religious symbols in the workplace remains the risk of indirect discrimination, as noted in Eweida. In that case, whilst it was found by the European Court of Human Rights that British Airways had a legitimate aim of projecting a neutral corporate brand image, ultimately it did not consider that the policy met the harder test of being a proportionate means of achieving that aim given the potentially discriminatory impact.

Although the Achbita case may be welcomed by some employers who operate similar dress codes, given the continuing risk of indirect discrimination claims, employers who intend to operate dress code policies banning religious symbols, should review their policies to consider whether a blanket ban can be objectively justified, or if there is a way of achieving the aim of the dress code policy in a more limited and proportionate manner.