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Can You Justify A Neutral Dress Code? by Antony Sendall

Antony Sendall considers the question ‘Can you justify a neutral dress code?’

In the last few years, the issue of dress codes for work has become a very fraught area for employers. This is for a whole host of reasons, often (but not exclusively) relating to issues of gender and religion.

Two recent ECJ cases have considered the issue of wearing manifestations of faith, particularly the Muslim headscarf. In particular they have looked at the tricky issue as to whether an indirectly discriminatory dress code can be justified.

In the first, the Claimant, Ms Achbita, worked for G4S in Belgium as a receptionist. G4S had an employee code of conduct that stated that employees ‘are not permitted to wear any religious, political or philosophical symbols while on duty’. She was dismissed because she insisted that she was going to wear her Muslim headscarf. The ECJ held that a total ban on all employees wearing manifestations of faith (including the Muslim headscarf) did not amount to direct discrimination against Muslims. It also held that, although it was possible while such a ban may be indirectly discriminatory, such a ban could potentially be justified if it was applied consistently in furtherance of the employer’s policy of presenting to the outside world an image of political, philosophical and religious neutrality.

In connection with the issue of justification, the ECJ gave some guidance:

• An employer’s desire to project an image of neutrality towards its customers could amount to a legitimate aim;
• The policy introduced to further such a legitimate aim would have to be pursued in a consistent and systematic way;
• A policy which differentiated between workers whose roles brought them into direct contact with customers and those that did not would be likely to be considered would be more likely to be considered necessary and appropriate;
• A national court would have to consider the circumstances carefully to determine the relevant interests involved and may, for instance, have to consider whether or not the employer could/should have offered the employee an alternative post that was not customer-facing.
• Other factors which might feed into the justification issue might be issues such as the size and conspicuousness of the religious symbol and the nature of the employee’s activity, such as the degree of face to face interaction with customers and the context in which it took place.

It is worth noting that this case may not have had the same outcome if determined by the national courts in the UK as this country has traditionally been far more tolerant of freedom of religious expression. Of course, Article 9 of the European Convention on Human Rights provides that everyone has the right to freedom of thought, conscience and religion. In Achbita, the ECJ specifically referred to the judgment of the ECHR in Eweida, which held that some restriction on the wearing of religious symbols at work was permissible. The ECHR however, did emphasise that there is a margin of appreciation in each state and on the facts of the Eweida case there was no evidence that the wearing of hijabs or turbans had damaged British Airways’ brand image. Accordingly, it cannot be assumed that the Article 9 right to freedom of religious expression will be regarded as subjugated to the employer’s wish to project a particular image of neutrality. It may well be that a UK Court, especially in a post-Brexit world, may struggle with the potential implications of this ECJ decision. The balancing of a desire to project neutrality while maintaining appropriate equality is a fine art and it should not be assumed by UK employers that a UK court will consider a ban which included the Muslim headscarf to be justified.

In Bougnaoui, the ECJ had to consider the dress issue from a slightly different perspective, namely, whether a ban on manifestations of faith could potentially amount to a ‘genuine occupational requirement’. Ms Bougnaoui was employed by MSA in France as a design engineer. At the time of her recruitment she was made aware that the customer-facing nature of her role meant that she would not be able to wear her Muslim headscarf. A customer complained that Ms Bougnaoui had worn her headscarf on a site visit and that this had upset a number of its employees. When MSA asked her to comply with the customer’s wishes, Ms Bougnaoui refused to comply, leading to her dismissal. The case was referred to the ECJ on the issue as to whether or not justification was possible (assuming it was indirectly discriminatory) under Article 4(1) of the Equal Treatment Framework Directive (No.2000/78) – namely, that the customer’s wish was a ‘genuine and determining occupational requirement’.

The ECJ held that, the employer’s reaction to a customer objecting to being served by an employee wearing a muslim headscarf by dismissing her (in the absence of a general prohibition) if discriminatory could not be justified as the situation did not give rise to a ‘genuine and determining occupational requirement’ within the meaning of Article 4 of the Framework Directive. The ECJ made it clear that the scope of Article 4 is very narrow and is limited to situations where the requirement relating to religion is objectively dictated by the nature of the occupational activities in question or the specific context in which they are undertaken.