What impact will the ECJ headscarf rulings have on UK employers?

Two Judgments from the European Court of Justice (ECJ) this week relating to the wearing of the headscarf at work have helped clarify the law but could prove difficult for UK employers wishing to impose a staff dress code.

The two separate cases related to a Ms Achbita and a Ms Bougnaoui who were both dismissed when they refused to remove their headscarves at work.

In Achbita v G4S Secure Solutions NV the ECJ decided that a ban on wearing headscarves may be justified by employers. The ban was implemented as part of a dress code to ensure all staff dressed neutrally irrespective of political, philosophical or religious belief.

In contrast, the ECJ held in Bougnaoui v Micropole Universe that such a ban could not be justified. In this case, a Muslim employee was asked to remove her headscarf when in the presence of customers.

In the case of Ms Achbita, the ECJ decided the ban did not amount to less favourable treatment because of an employee’s religious belief (direct discrimination) as it was applied to the whole workforce. However, the ban may have had the effect of putting those with a religious belief at a disadvantage as they were not able to manifest that belief by wearing their headscarf (indirect religious discrimination). If that was the case though, the ban could be justified if the employer had a legitimate aim for implementing the ban, and that the ban did not go further than reasonably necessary to achieve that aim. The ECJ stated that an employer’s desire to project an image of neutrality could be considered a legitimate aim so long as the dress code was only applied to those in a customer facing role. Justification was up to member states to decide though.

In the Bougnaoui case, there was no such dress code. Instead the employee was asked to remove the headscarf when in the presence of customers. The ECJ held that this could amount to direct religious discrimination, and stated that the wishes of a customer did not justify the request.

The ECJ’s decisions indicate that the introduction of a neutral dress code which results in employees not being able to wear signs of political, philosophical or religious belief at work may be justified. However, what is justifiable will be up to the UK Courts to decide. It’s also important to note that the ECJ’s decision is still relevant despite the UK’s decision to leave the EU.

The ACAS guidance on dress codes issued last year states that before implementing a strict and limiting dress code, employers should consider the image they wish to convey and how they can work with employees to allow them to manifest their faith in a way that does not conflict with this image or health and safety requirements.

Parliament has also recently held a debate on dress codes prompted by the female receptionist who was sent home for refusing to wear high heels at work. The debate was held after a report by the Women and Equalities Committee which found that many women were forced to dress in a way at work which sexualised their appearance. Following the debate, the government confirmed that further guidance might be needed on dress codes in the workplace but encouraged employers to ensure that dress codes are applied in a non-discriminatory way.

Following this week’s Judgments, employers considering introducing a neutral dress code policy should therefore take a moment to consider why such a policy is necessary and to which parts of the business it should apply. Simply satisfying the wishes of a customer is unlikely to be a justifiable reason.