What does the law say about wearing religious clothing at work?

4 Jul 2017 By Tess Barrett

Solicitor Tess Barrett considers the lessons HR can learn from two recent rulings on headscarves in the workplace

A Muslim estate agent is taking her employer to employment tribunal after reportedly being told by her manager to remove her black headscarf because the supposed “terrorist affiliations” with its colour would make customers “feel intimidated and scared”.

The preliminary hearing on this case is due to be heard next month in the Manchester Employment Tribunal, and is believed to be the first case in the UK involving religious dress since the Court of Justice of the European Union (CJEU) ruling in Achbita v G4S Secure Solutions NV earlier this year. The decision in Achbita was widely misreported and it seems that, as a result, some employers incorrectly believe they have the absolute right to demand that employees remove their religious attire, be it a crucifix or a headscarf.

Achbita was referred to the CJEU from the French courts and involved a Muslim receptionist who was dismissed by G4S because of her insistence on wearing her headscarf to work. She claimed that she had been subjected to direct discrimination on the grounds of her Muslim faith. G4S had a policy that prohibited all employees of all faiths from wearing visible religious dress. Because this policy was applied equally to all religions – for example, Christians could not wear crucifixes, and Sikhs could not wear turbans – no one religion was treated less favourably than another. It was therefore held by the CJEU that the claimant had not been directly discriminated against on the grounds of her Muslim faith.

The CJEU went on to consider indirect discrimination and whether the policy itself disadvantaged Muslims more than others, but it found that G4S could defend its policy as it had a legitimate justification in wishing to project a neutral image, particularly in customer-facing roles.

However, it is important to note that this case originated in France; its stance on this issue differs significantly to the UK’s – French public sector workers are already prohibited from wearing headscarves.

UK domestic legislation (the Equality Act 2010) sets a higher bar on the objective justification defence than the test the CJEU had to consider in this case. It is therefore doubtful that a UK employer would successfully defend the existence of a similar policy.

The Achbita case differed from the decision reached in Bougnaoui v Micropole Univers, which also involved an employer instructing a female Muslim employee to remove her headscarf. In this case, the justification defence put forward was that a customer had complained about the claimant’s headscarf. The CJEU held that a customer’s objection to an employee’s religious dress is not an acceptable reason to require the employee to remove it.

Dress codes in general can be a tricky area, as demonstrated by the recent debate over high heels. And in this hot weather, men are challenging company dress codes that require them to wear shirts and ties.

Taking simple steps towards dress codes can minimise risk to employers. Make sure that dress codes are appropriate to the work being undertaken and the conditions your employees work in, and ensure such policies are fairly applied to all.

Religious dress in the workplace does not need to cause additional concern. Employers should ensure that any policies regarding dress, even if they are applied to all, do not unfairly and unjustifiably disadvantage employees of certain religions even if applied equally.

However, my main recommendation to employers is, rather than seek to restrict religious dress, embrace diversity instead.

Tess Barrett is a solicitor at didlaw

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