Dress codes and political, philosophical and religious neutrality
Author: Darren Newman
Consultant editor Darren Newman considers the Advocate General's recent opinion that it does not amount to direct religious discrimination for an employer with a policy of religious, philosophical and political neutrality to prevent a Muslim employee from wearing a hijab.
A case is brewing in the European Court of Justice (ECJ) that may prove to be more than usually controversial. In the Advocate General's opinion in Achbita and another v G4S Secure Solutions [2017] IRLR 466 ECJ, a Belgian employee was dismissed from her role as a receptionist for one of her employer's clients for insisting on wearing an Islamic headscarf or hijab. In Belgium, G4S had a policy that prohibited employees from "wearing any visible sign of their political, philosophical or religious beliefs". Ms Achbita - a Muslim - complied with this policy for some three years, but then decided that her religious beliefs required her to wear a hijab when she was at work. When she refused to back down, she was dismissed.
The Belgian court is now asking the ECJ if the employer's policy amounted to direct discrimination under the Equal Treatment Framework Directive (2000/78/EC). The case has yet to be decided, but the Advocate General - a court official who produces opinions designed to assist the Court in reaching its conclusions - has taken the view that there was no direct discrimination. There was no evidence that one religious group was being singled out or that religious people were treated less favourably than non-religious people. All employees were subject to the same rule and Ms Achbita was not dismissed because of her religious beliefs but because of her refusal to adhere to that rule.
However, the fact that the employer would also have dismissed a Sikh for wearing a turban, a Christian for wearing a crucifix or a Jew for wearing a kippah - all examples quoted by the Advocate General to show how "even handed" the rule is - is surely not the point. The dismissal was on the grounds of religious belief in the sense that the employer's objection to the hijab was simply that it identified the wearer as a Muslim. Religion was surely a factor in the decision to dismiss and it is entirely artificial to regard the wearing of a headscarf as being separate and distinct from Ms Achbita's religious beliefs. We shall have to wait and see whether or not the ECJ agrees with the Advocate General on this point.
It is more straightforward, however, to regard the case as one of indirect rather than direct discrimination. The Advocate General accepted that the employer's dress code put employees who shared Ms Achbita's beliefs at a particular disadvantage and then went on to discuss whether or not the code was justified. That depended on whether or not the employer was pursuing a legitimate aim in imposing the dress code and whether or not the ban on religious clothing was "appropriate and necessary" to achieve that aim.
In the UK we would apply the same test - although the Equality Act 2010 uses the phrase "proportionate means of achieving a legitimate aim". For example, in Azmi v Kirklees Metropolitan Borough Council [2007] IRLR 484 EAT, the employer was held to be justified in requiring a teaching assistant not to wear a veil when working with children. That justification was based on evidence that the children's language skills would benefit if the children were able to see the employee's face while she was talking. In Achbita, however, the employer's justification was not based on such practical considerations, but on what the Advocate General described as its "policy of religious and ideological neutrality". Its aim was to serve its customers effectively and it wanted to ensure that they would not attribute to G4S itself the religious beliefs of a customer-facing employee. In other words, the worry was that a customer coming to a reception desk where an employee wearing a hijab was on duty might think that either G4S - or its client - was itself associated with Islam.
This seems to me an extraordinary assertion. Can there really be a genuine concern that a customer would think that, because a company employed someone who wore a religious symbol or head covering, the company itself was in some way biased towards that religion?
The Advocate General sees this aim of "neutrality" as a clearly legitimate one. But a policy that forbids any visible religious clothing is not neutral at all. Rather, it is biased towards a dominant western culture, which does not require any head covering to be worn. The policy ensures that members of staff conform to the appearance of the majority and do not appear to belong to certain minority groups. That is not neutrality but a bias against Islam and those other religions that influence the appearance of their adherents. Neutrality would be better expressed by a clear diversity in the workforce rather than a rigid conformity to one particular "look".
In Great Britain I would expect an employment tribunal to give short shrift to any dress code claiming neutrality as a basis for excluding religious dress in this way. A slightly different view tends to be taken in Northern Ireland where the law on religious discrimination has arisen in the context of conflict between two distinct communities. The Fair Employment Code of Practice encourages employers to create and sustain a "neutral workplace" and much of the emphasis of the case law has been on the display of flags or other symbols that indicate someone's religious affiliation - and which might be perceived as offensive or intimidating by those from a different community. However, in the rest of the UK, good practice would surely be for an employer to celebrate the diversity of its workforce rather than insist that no one can tell what their religious affiliation might be.
It remains to be seen whether or not the ECJ accepts the reasoning of the Advocate General and agrees that a desire for "neutrality" can justify the exclusion of employees who feel unable to comply with their employer's dress code. But whatever the outcome, we should remember that justification is ultimately a matter for the national court to decide. While all member states must apply the same legal principles, the application of those principles will not always lead to the same outcome. It would be a mistake for a British employer to think that a justification argument that is persuasive in Belgium would necessarily find favour here.
