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Headscarves and discrimination in the work place

31st Mar 2017

 

Recently, the ECJ was asked to determine whether two cases involving the dismissal of women for each refusing to remove their headscarf at work amounted to religious discrimination. The French and Belgian cases were combined after separate Advocate Generals arrived at different conclusions on whether a headscarf ban amounted to direct discrimination.

Contrary to the recent headlines, the ECJ did not rule that employers are able to ban headscarves at work. Rather, the judgement explains that a headscarf ban at work – which was part of a wider policy on religious neutrality – did not constitute direct discrimination.

However, employers should not disregard the risk of direct and indirect discrimination of such a policy. To avoid an indirect discrimination claim an employer will have to objectively justify their approach, which involves identifying a legitimate aim which is implemented in a proportionate manner.

In the Achbita case the ECJ ruled that an employer’s desire to project an image of neutrality towards its customers was a legitimate aim, particularly where it only applies to workers in customer facing roles.

These cases were references from French and Belgian courts where different social and cultural norms to the UK affect their views on religious neutrality at work. In France for instance, public sector workers are banned from wearing an Islamic headscarf at work. Whilst cases relating to religious attire have been brought in the UK, we are not aware of any reported cases regarding a headscarf ban. In one case, a school was held to be justified when they asked a teaching assistant to remove her veil, when she was teaching children because of the impact this had on effective communication. In another case involving a Jilbab, an employer was justified on health and safety grounds in stating that any clothing worn should not present a trip hazard.

Employers who apply general bans in light of these recent ECJ cases certainly reduce the scope to argue direct religious discrimination in relation to the way in which they manifest their religion through their attire. Rules on clothing and dress codes at work may not infringe the law on indirect religious discrimination, provided an employer can demonstrate the rules achieve a legitimate aim in a proportionate way.

Employers should ensure that they are not too blinkered in their application of any such general rule or justification as a route to dismissing employees and, as highlighted in the Achbita case, should consider alternative non-customer facing roles as an alternative which would enable the employee to wear the headscarf. Consideration of such “reasonable accommodation” is likely to reflect good employment practice as well as to mitigate the risk of claims of religious discrimination.

We are not convinced that taking action like this in the UK would be wise. There is a great risk of a company being exposed to claims of religious discrimination if such action against employees wearing headscarves is taken without seeking advice from an expert beforehand.

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