Can employers ban religious clothing - or not?
If you believe everything written in the press (which I am sure most of you don’t!) you would think that the European Court had recently decided employers could lawfully ban headscarves in the workplace. Of course, it isn’t as quite straightforward as that. We look at the recent Achbita v G4S case and what it means for employers in the UK.
The case the European Court of Justice (ECJ) was being asked to decide arose when Ms Achbita, a Muslim receptionist at G4S in Belgium, was asked not to wear her Islamic headscarf at work. This was because G4S said they had a ‘policy of neutrality’ which banned all staff from wearing visible religious or political items in the workplace. Ms Achbita refused to comply, and was dismissed. She then brought a claim in the Belgian courts, and the Belgian courts referred the matter to the ECJ to decide on whether such a ban would amount to unlawful discrimination.
The questions to be answered by the ECJ in the case were:
1. Does a ban on religious clothing amount to direct discrimination? (Direct discrimination is where someone is treated less favourably because they have a protected characteristic, in this case their religion or belief. There is no defence to direct discrimination on the grounds of religion).
2. If not, does it amount to indirect discrimination? (Indirect discrimination is where a rule is applied to everyone, but it disproportionately affects those who have a particular protected characteristic. There is a defence if the rule is a proportionate means of achieving a legitimate aim).
3. If it does amount to indirect discrimination, do the employers have a defence?
As far as question 1 is concerned, the ECJ said that a ban on any religious or political clothing did not amount to direct discrimination because it was imposed on all employees alike. However, their reasoning does seem flawed on this point, because of course such a ban is targeted at those who have particular religious or political beliefs that may require them to wear such items.
In any event, the key question in these cases was always going to be question 2 - indirect discrimination. The ECJ said that a ‘policy of neutrality’ was indirectly discriminatory, in that it disadvantaged those with particular religious or political beliefs. It therefore moved on to question 3.
The ECJ did not make a definitive decision on whether the defence was proven, as it said that was a matter for the relevant national court(s). However, the ECJ did say that the ban was capable of justification, and mentioned that G4S could have considered moving Ms Achbita to a role which was not customer facing, as an alternative to dismissing her. It will be for the Belgian courts to decide if G4S can show that dismissal was a proportionate means of achieving a legitimate aim.
So what does the case mean for employers in this country? Well, it is important to remember that unlike Belgium, a ‘policy of neutrality’ is not something which we are familiar with in the UK (with the exception of the Fair Employment rules in Northern Ireland, which operate differently and are designed to ensure equality between Protestant and Roman Catholic employees). It seems unlikely that a UK court or Tribunal would find it justifiable for an employer to impose a ban on any religious or political clothing without there being a good reason, i.e. not just because of a desire for ‘neutrality’. For example, in a 2007 case the Employment Appeal Tribunal confirmed that it was justified for a school to insist a bilingual pupil support worker removed her veil, but this was purely during the time when she was teaching and assisting the pupils, when they needed to see her speak (Azmi v Kirklees) and she was permitted to wear the veil at all other times.
We also have to bear in mind the Human Rights angle, which wasn’t taken into account in the Achbita case. As you may recall, in the landmark Eweida case (which we wrote about here), when British Airways tried to ban a member of cabin crew from wearing a discreet cross, the European Court of Human Rights upheld Ms Eweida’s complaint, on the basis that there was no evidence that other employees wearing authorised religious clothing, such as turbans, had any negative impact on British Airways’ brand or image.
In conclusion, headlines saying that employers can ban religious clothing in the workplace are pretty misleading, at least as far as the UK is concerned. Employers need to strike a fair balance between employees’ religious beliefs and the genuine requirements of the workplace. If requests to wear religious or political items are refused, there should be reasons given and the rules must be proportionate. It obviously isn’t very exciting for the headline writers (!), but I think it will be rare for employers to be able to justify imposing a ban.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or firstname.lastname@example.org).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.