The European Court of Justice (ECJ) recently ruled that in the case of Samira Achbita versus G4S it was not discriminatory to dismiss Achbita as a result of her wearing headscarves at work. In this article we consider what the ECJ said and how it may affect your dress code at work policy.
How did the ECJ reach this decision?
Achbita was recruited to work as a receptionist for G4S in Belgium in June 2006. After three years, she started to wear a headscarf to work. When Achbita was employed, there was an unwritten rule banning overt religious symbols and during the period of her employment, this was formalised in a written policy which prevented employees of any religion from wearing overt religious symbols. The rationale was for the company to present a neutral face to public and private sector clients.
As in this case the employer had a clear policy about maintaining neutrality in front of clients, and it applied to all employees, regardless of political, religious and philosophical beliefs, the ECJ found the company’s action was not discriminatory.
What does this ruling on headscarves mean for me as an employer and our dress code at work policy?
Although this case was found to be non-discriminatory, employers should be cautious in similar situations and consider the following.
Dress Code at Work Policy – if you need one, ensure there is a dress code policy in place with a proportionate means of achieving a legitimate aim. In this case, the ECJ said, “An employer’s desire to project an image of neutrality towards both its private and public sector clients is legitimate”. This shows the importance of having a well-documented policy, which sets out why it is in place and how it will be applied across the company.
Legitimate Aim – the ECJ found that the company’s policy had a legitimate aim, but this may not be case in situations where the policy is broader; that is, if the company simply wants to project a particular corporate image. Employers must be able to demonstrate that they haven’t brought about indirect discrimination through their actions. For example, in this case, the court would have to establish whether Achbita could take on another role where she did not come into contact with customers.
Consistent Application Across the workforce – one of the reasons this case found the company’s action to be non-discriminatory was because the ban was applied to the whole workforce and anyone wearing any religious, political or philosophical symbols would have been subject to the same rules. Had the ban only been applied to certain groups of the workforce, it’s more likely to have been considered discriminatory.
Customer Requests – the ECJ was clear that a ban could not be based on “subjective considerations” such as a request from a customer not to be served by someone wearing overt religious symbols. The court said, “The willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement”.
Employers must be mindful if considering a ban on wearing religious, political or philosophical symbols as, if challenged, they would have to show it’s the implementation of a legitimate policy, consistently applied across the workforce. Such action as the result of subjective and ad hoc considerations, like customer preferences, would not be seen as legitimate.
If this is an area where we can support your business, then don’t hesitate to contact us on 01271 859267 or e-mail us on office@fitzgeraldhr.co.uk.
