We recently published a blog on Dress Codes in the Workplace and Avoiding Potential Discrimination Claims. We pointed out that if an employer intends to implement a dress code or neutrality policy, it must ensure that it is proportionate to the objective, thereby avoiding any claims of unlawful discrimination.
In recent weeks, the European Court of Justice (ECJ) issued two landmark rulings, which have generated much discussion.
These ECJ rulings allow employers to prohibit public facing employees wearing political, philosophical and religious signs including the wearing of headscarves where such a policy is properly applied to project an image on neutrality and is genuinely pursued in a consistent and systematic manner. The two separate cases were referred to the ECJ by employees who were dismissed after they had continued to wear Islamic headscarves following notification by their employer’s that such religious signs were prohibited when coming into contact with customers.
In the first case, Achbita v G4S Secure Solutions, a client facing receptionist who was employed for a number of years, informed her line managers that she intended in future to wear an Islamic headscarf during working hours. She was notified by management that wearing such a headscarf would not be tolerated as it was contrary to the company’s position on neutrality. The employee ignored her employer’s warning, notified her managers that she would be wearing the headscarf and was subsequently dismissed.
The second case, Bougnaoui v Micropole, concerned a customer facing design engineer who was dismissed by her employer after a customer complained that it was “embarrassed” by her headscarf while she was on their premises to give advice. During her recruitment she had been advised by the employer at a jobs fair that wearing a headscarf might pose problems for its customers. As an intern the employee wore a “simple bandana” but subsequently wore an Islamic headscarf when she was made a permanent employee. The ECJ ruled against the employer on the specific facts of this case as it seemed that the employer was more focused on the wishes of the particular customer than on applying a consistent internal rule.
Overall, the ECJ applied a general principle that, where the employer had a legitimate aim to project an image of neutrality towards customers, client facing workers can be prohibited from wearing signs portraying political, philosophical or religious beliefs. The ECJ did however state that a policy of neutrality is only appropriate where it is properly applied and genuinely pursued in a consistent and systematic manner.
The matter is far from straightforward however and employers should continue to exercise caution if they wish to implement a policy portraying neutrality towards clients. These recent ECJ rulings do not necessarily sit neatly with the European Court of Human Rights (ECHR) decision in Eweida v British Airways. In that case, a human rights rather than an employment law case, an airline employee was awarded €2,000 compensation for injury to feelings plus legal costs by the ECHR as she had been prohibited from wearing a visible religious cross which the employer had said was in breach of its uniform policy. This was recently covered by our blog; Dress Codes in the Workplace: Avoiding Potential Discrimination Claims. If an employer intends to implement a dress code or neutrality policy, it must ensure that it is proportionate to the objective, thereby avoiding any claims of unlawful discrimination.