Annelise Tracy Phillips, senior associate, Burges Salmon LLP examines recent controversies and cases about workplace attire

Legal

There has been a lot of publicity about dress codes in the workplace recently, and in particular, differences in dress codes for men and women.

A case is currently going through the European Court of Justice (ECJ) involving a Belgian, Muslim employee who was dismissed for wearing a headscarf at work.  It has attracted little publicity in the UK but has the potential to cause a big headache for UK employers.

Ms Achbita worked for G4S in Belgium. G4S has a strict policy of neutrality which prevents employees from wearing any political, philosophical or religious symbols whilst on duty. When Ms Achbita insisted on wearing her headscarf during working hours she was dismissed for having breached this policy. The ECJ is being asked to decide whether that headscarf ban is direct discrimination under the Equal Treatment Directive, and if so, whether the neutrality policy is justifiable. 

The Advocate General has recently published her opinion in the case.  In her opinion, a policy of neutrality in relation to clothing cannot be direct discrimination because it applies to all employees regardless of religion.  Her opinion has been criticised as treating the protected characteristic of religion differently to other protected characteristics like gender. This is because in the past the ECJ has interpreted what constitutes direct discriminations quite widely in the context of other protected characteristics. It has recognised that some things are so intrinsic to a protected characteristic that treating someone less favourably because of them is inseparable from treating them less favourably because of their protected characteristic. That makes the treatment direct discrimination. 

A good example is pregnancy. Because only women can get pregnant, treating a woman less favourably because of her pregnancy is direct sex discrimination—the pregnancy is inseparable from her gender.  If wearing a headscarf is inseparable from the practice and manifestation of being a Muslim then a policy of neutrality which prevents someone from wearing one could be direct religious discrimination. 

If the ECJ disagrees with the Advocate General and follows the pregnancy example that could cause a problem in the UK.

That's because the Equality Act 2010 in the UK limits the areas in which direct religious discrimination is justifiable. In the UK direct religious discrimination is only permitted where being of a particular faith is an occupational requirement, for example, being a priest or working in a religious organisation.

The UK courts have generally treated dress codes which are applied equally to all employees regardless of faith as potentially indirectly discriminatory and, therefore, capable of being justified (and therefore permissible).  That means the focus is on the explanation for the policy and whether that explanation is justifiable.

UK courts have decided, for example, that hygiene requirements justified a jewellery ban in a hospital even though it prevented a Christian employee from wearing a crucifix. That approach was upheld in the European Court of Human Rights. In another case, a ban at a  nursery on jilbabs (long garments covering the body from neck to ankle) which presented a tripping hazard, as opposed to slightly shorter ones which did not, was also upheld as justified by the Employment Appeal Tribunal even though the policy indirectly discriminates against Muslims.

If the ECJ decides that some manifestations of faith are inseparable from the faith itself so a dress code which interferes with that is directly discriminatory then those dress codes are unlikely to be lawful in the UK because direct discrimination under UK law on the grounds of religion cannot be justified (other than as set out above).  Dress codes which interfere with those manifestations of faith which are not inseparable to the faith, however, could still be justified.  That means employers who wish to implement dress codes, for example, for health and safety reasons, may have to decide what is inseparable to a faith and what is not - a real hot potato.

Annelise Tracy Phillips is a Senior Associate at UK independent law firm, Burges Salmon LLP