Now the 2017 European Court of Justice (ECJ) ruling that, in certain circumstances, employers can ban workers from the ‘visible wearing of any political, philosophical or religious sign’ (including headscarves) has sunk into employment law and real-life application by HR departments, we explain what it really means for employers (and their policies) in the UK.
Here our expert employment solicitors have compiled an advice guide to the law around religion and belief discrimination and dress codes for UK employers.
We'll be covering:
- What is religion and belief discrimination?
- Who is protected from religion and belief discrimination?
- How does religion and belief discrimination apply to workplace dress codes?
- What does this mean for you as an employer? Religious clothing case law examples in the UK
- Headscarf ban court cases: France and Belgium
- What will the impact be in the UK?
- Developing a dress code policy – some common sense tips for employers
What is religion and belief discrimination?
Discrimination in the workplace on the grounds of a religion or belief (or lack of it) may be unlawful. ‘Belief’ covers any genuinely held religious or philosophical belief and may even include some political beliefs.
The following types of religion or belief discrimination will be unlawful under the Equality Act 2010:
- Direct discrimination – the discrimination is because of the religion or belief. For example, an employer rejects a job applicant simply because they are of a particular religion
- Indirect discrimination – the employer has a rule or policy (such as a dress code) which, although applied to all employees equally, disadvantages an employee of a particular religion or belief and the employer can’t show ‘objective justification’ for the treatment
- Harassment related to the employee’s religion or belief
- Victimisation of someone who has made or is making a complaint about religion or belief discrimination.
Who is protected from religion and belief discrimination?
As with other forms of discrimination, protection from religion or belief discrimination in the workplace is wider than for employment rights such as protection from unfair dismissal. It covers job applicants, employees, workers and even some self-employed people (broadly, if they are contracted personally to do the work). For more on the rights of the different types of workers, see our Honest Guide to What You Do and Don’t Need a Solicitor For – Part 3: Hiring Employees.
It’s important to note that, unlike for an unfair dismissal claim, an employee does not need two years’ service to bring a claim of religion or belief discrimination and that compensation for unlawful discrimination is not capped.
How does religion and belief discrimination apply to workplace dress codes?
If an employer operates a dress code which prevents workers wearing items of clothing such as headscarves, crosses or other jewellery, or restricts the way they dress, then this could potentially give rise to a claim of unlawful discrimination on grounds of religion or belief.
It is possible for this to be direct discrimination – if an employee was dismissed for refusing to remove a veil and a rule about face covering was not applied to other employees, for example. But the more common scenario is indirect discrimination – where a dress code is applied to everyone but adversely impacts an employee of a particular religion. Once an employee has demonstrated this, then it’s up to the employer to show that the dress code is objectively justified. If they can do this, the discrimination won’t be unlawful.
Establishing justification isn’t easy though; the employer has to show:
- a legitimate aim (a real business need)
- that the dress code was a proportionate means of achieving that aim – it was reasonably necessary and there wasn’t a less discriminatory way of going about it.
There is also a human rights angle. Enforcement of dress codes can be a breach of the right to manifest belief, which is protected by the European Convention on Human Rights (ECHR). At the moment, the ECHR has to be taken into account in interpreting UK legislation, including the Equality Act.
In 2013, there were two high profile human rights cases – Eweida and Chaplin – where employees were prevented from wearing visible crosses at work. The ECHR in Eweida decided that an airline check-in officer’s right to manifest her belief was unjustifiably breached by a dress code introduced for corporate image reasons. In Chaplin, by contrast, health and safety considerations (the employee was a nurse) outweighed the right.
What does this mean for you as an employer? Religious clothing case law examples in the UK
There have already been several cases in the UK concerning religious dress and symbols. The UK case law indicates that it may be possible for employers to impose restrictions in dress code even if that conflicts with an employee’s wish to manifest their religious belief by wearing particular clothing or jewellery.
Recent cases concerning religious dress in the workplace include:
- Begum v Pedagogy Auras UK Ltd – a nursery didn’t discriminate against a Muslim job applicant when it made clear at interview that it had a requirement for employees to modify clothing that could be a trip hazard. Women were allowed to wear jilbabs, even full length, so long as they didn’t infringe this rule. And even if it had been discrimination, the EAT said it would have been justified on health and safety grounds
- Dhinsa v Serco – an employment tribunal rejected a discrimination claim by a prison officer based on a company rule that kirpan knives could not be worn inside prisons except by Sikh chaplains. The rule was justified by the legitimate aim of ensuring safety and security in prisons. The tribunal took into account the number of individuals affected by the ban; the differing roles of prison officers and chaplains; the prevalence of prison assaults; and the fact that the company had considered other options
- Azmi v Kirklees Metropolitan Borough Council – the EAT decided that an employer’s instruction to a bilingual support worker to remove her full face veil while teaching was not discrimination. It was a proportionate means of achieving the legitimate aim of providing the best education.
In the past, health and safety and raising educational standards for children within a school have been held to be legitimate aims for restrictions on religious dress. However, as mentioned above in relation to the human rights cases, a desire to protect a corporate image has been found to be insufficient on the facts to justify a restriction on the wearing of religious symbols.
Headscarf ban court cases: France and Belgium
Receptionist Samira Achbita was dismissed in Belgium by services firm G4S when, after three years in her job, she indicated that she would only work if she was allowed to wear a headscarf in the office. The dismissal was in line with an internal prohibition on the visible wearing of any political, philosophical or religious symbols – part of the employer’s policy of complete neutrality towards customers. The ECJ decided that there is no direct discrimination where the ban is part of a general prohibition on wearing symbols in the workplace.
The ECJ added it was for the Belgian judges to determine whether Achbita may have been a victim of indirect discrimination if the rule put people of a certain faith at a disadvantage.
However, the ECJ went on to state the rule could still be justified if it was ‘genuinely pursued in a consistent and systematic manner’ with a ‘legitimate aim’ such as protecting a public ‘image of neutrality’. If the ban applied only to workers who interacted with customers, then it ought to be regarded as proportionate. But the Belgian court should consider whether it might have been possible for the employee to have been offered a post that didn’t involve visual customer contact.
The ECJ also ruled in the case of software engineer Asma Bougnaoui who was dismissed by a French company for refusing to remove her headscarf following a complaint from a client. Here the ECJ said that if there was an internal rule then the principle in the Achbita case would apply but, if not, the dismissal would be direct discrimination. The willingness of an employer to take account of the wishes of a customer not to have services provided by a worker wearing an Islamic headscarf can’t be considered an occupational requirement (the justification relied on in the French court).
What will the impact be in the UK?
It remains to be seen how this latest ruling from the ECJ will be interpreted here. For now at least, the decision will have to be followed by our courts (and, in any event, there seems little appetite for amending any EU discrimination law post-Brexit).
Despite the limited endorsement of a headscarf ban in Achbita, you should nevertheless be cautious in your approach to restrictions on religious dress. It is probably fair to say that the precise facts of that case are unlikely to arise in the UK given the historically different approach to secularity here.
The main message from the ECJ is the importance of consistency and proportionality in dress codes.
You must also be careful to ensure that you’re consistent in the application of the policy and in the handling of any resulting disciplinary action, as any difference in treatment may amount to discrimination – see more in our advice post, What Is A ‘Fair’ Dismissal?.
Developing a dress code policy – some common sense tips for employers
- Ask yourself whether a dress code/uniform is really necessary – does it have a significant impact on employees’ ability to do their jobs?
- Consider reputational and employee relations issues carefully – you may remember the high profile campaign recently to make it unlawful for employers to require women to wear high heels at work
- Bear in mind that it is not just the banning of certain items that can be problematic – if you ask staff to wear a uniform or dress in a particular style, this can cause issues for those whose religion requires them to dress modestly, for example
- Be aware of other potential areas of discrimination too – dress codes must be applied to men and women equally, for example
- If the code is necessary, draw it up in consultation with staff/trade unions
- Explain the reasons for the code
- Ensure it can be defended as reasonable, proportionate and fair
- Apply the code and any disciplinary action consistently
- Review the code regularly.
Win a year's legal subscription
Worth over £2,000, plus entry is free!
How does legal peace of mind for your business for a whole year sound? This February one lucky company will win our prize draw for a year’s legal subscription to our Enterprise Plan.