Out-Law / Your Daily Need-To-Know

Ban on religious dress may be lawful rules ECJ

Out-Law News | 27 Jul 2021 | 9:58 am |

Laura Starrett tells HRNews how a recent European Court of Justice ruling may impact UK employers’ dress policies

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  • Transcript

    Are religious dress bans in the workplace discriminatory? Can you impose rules on staff and, if you do, what are the risks?

    This is in the news following a ruling by the European Court of Justice on whether a dress code prohibiting workers from wearing any visible sign of political, philosophical, or religious belief in the workplace was discriminatory on religion or belief grounds. The court has ruled that such a policy doesn’t amount to direct religion or belief discrimination, provided the rule is applied in a general and undifferentiated way – we will come on to what that means shortly. Also, the court said, such policies are capable of being justified in the context of indirect discrimination provided the policy meets a genuine need of the employer.

    It is worth saying that this is a European Court ruling and since 31 December 2020 case law from the ECJ has not been binding on UK courts. Instead UK courts may have regard to any new European case law so long as it is relevant to the matter which is before the UK court. In short, we think this case would hold sway over how UK employers should manage their religious dress policies. 

    The ECJ was considering issues referred to them by the German labour courts in two joined cases. The first case, WABE, involved an employee who was a special-needs carer in a child centre. The employer applied a policy of political, philosophical, and religious neutrality which meant its employees were not permitted to wear any sign of those beliefs that were visible to parents, children and third parties in the workplace. The employee in this case chose to wear an Islamic headscarf to work on a number of occasions and was given warnings and suspended.

    The second case, Muller, concerned an employee who was a sales assistant and cashier in a store in Germany. She was sent home after refusing to comply with her employer’s request to remove her Islamic head scarf. The employer’s dress code in this case instructed employees to avoid wearing ‘conspicuous’ and/or ‘large size’ signs of any political, philosophical, or religious beliefs. 

    Both employees brought actions before the German courts which referred questions to the ECJ. The court was asked to determine whether the treatment in both cases constituted direct religion or belief discrimination, and whether the indirectly discriminatory effect of such a policy could be objectively justified.  The court ruled, in both cases, that the employers’ policies were lawful, being neither directly nor indirectly discriminatory. 

    So let’s consider what this case means for employers in the UK. Laura Starrett joined me by phone from Manchester to discuss the case. I started by asking Laura about the risks employers face when imposing dress codes on staff and how this case helps:

    Laura Starrett: “There are two risks for employers to be alive to when it comes to rules around dress codes. The first being around direct discrimination, which tends to arise with targeted policies designed to ban particular attire and the second around indirect discrimination which tends to arise with universal policies banning all attire. So, the case is helpful because it considers both direct and indirect discrimination in the context of dress codes. So if we consider direct discrimination, in the WABE case the universal rule banning employees from wearing anything which demonstrated a religious, philosophical, or political belief in the workplace, so in effect a policy of neutrality, that could not constitute direct discrimination and that’s because the universal nature of the rule means that it didn't target any particular requirements of any specific religion so there wasn't any specific religious grouping that was being treated less favourably by the rule. Then in the Muller case, the specific rule of banning the wearing of visible large-sized signs of political, philosophical, or religious beliefs was likely to amount to direct discrimination because it was likely to target a specific religion. So, for example, the wearing of the hijab as a large visible sign associated with Islam and, therefore, such a specific rule preventing the wearing of such attire would amount to less favourable treatment based on the individual's religion or belief. The other aspect, then is indirect discrimination and the court gave some guidance on whether such dress code policies were capable of being justified in the context of indirect discrimination if the policy met a genuine need of the employer. So, although a uniform ban against any visible sign of a political, philosophical, or religious belief is not directly discriminatory, there remains the possibility that such a rule might still indirectly discriminate against aspects of a particular religion when it comes to the requirement of wearing visible signs of that religion.”

    Joe Glavina: “What are the key points for HR to take on board when it comes to implementing dress codes?”

    Laura Starrett: “So, I think from the very start, it's obviously thinking about the dress code and in the context of consulting with staff, including relevant employee-run networks and recognise trade unions if they are in the workplace essentially. That’s because essentially it allows the employer to get their input and support and take into consideration that some employees may wish to dress in a certain way or avoid certain items of clothing, due to the style or tailoring, because of their religion or belief and it's important that the employer is taking and that diversity of thought on board. Then in  terms of the drafting of the code, or the policy, the employer should look to be flexible and reasonable where possible and if it does include appearance restrictions or requirements, there must be good business reasons for that which are proportionate, appropriate, and necessary. The policy should then, of course, be explained to staff sensitively in order to get their buy in and agreement on the rationale for implementing it in the first place. Of course, an employee should be allowed to raise concerns about a dress code because of their religion or belief, but with a view to both the employee and employer then working together to be reasonable about each other's needs and try to come to an agreement. As always it is important to keep a paper trail of any decisions made because it may be that that needs to be relied upon as part of the employers justification defence for imposing any specific rule around dress codes. Finally, it is a difficult area, it's complex, there's lots of nuances, and I think it's not easy to manage so training for managers in this area will be key.”

    We mentioned at the start, why this European case is not binding on UK courts but is nonetheless relevant to UK employers. On the subject of employment law, the UK, the EU, and Brexit there is a very good factsheet which the CIPD published on 4 January explaining that issue and what might change in the future. We have put a link to that in the transcript of this programme. 

    LINKS
    - Link to CIPD factsheet
    - Link to judgment: IX v WABE eV; MH Müller Handels GmbH v MJ