14 June 2016

High heels and headscarves: dress codes under scrutiny

This article was written by Sarah-Jane Van Den Burgh, Associate

First high heels, now head scarves. A female receptionist was recently asked to leave the workplace for refusing to wear high heels, sparking outcry in the UK press. Now, a Belgian security services company (G4S) is under scrutiny for dismissing a female Muslim receptionist (Ms Achbita) for refusing to remove her headscarf whilst at work, flouting G4S’s ban on any visible religious, political or philosophical symbols in the workplace.

Employer-imposed dress codes have never been more fashionable - or more controversial.

Ms Achbita’s claim for direct and indirect discrimination was escalated to the European Court of Justice (ECJ), and the Advocate General’s opinion to the ECJ was that:

  1. there was no direct discrimination as the dress code applied to all employees equally (the ban extended to philosophical and political symbols) and unlike other protected characteristics such as race or sex, the active expression of a religious belief is a matter of choice; and

  2. any indirect discrimination could be justified given G4S's commercial objective of religious and ideological neutrality, provided it could show that the measure was proportionate. This involved consideration of factors including the size and conspicuousness of the symbol, the nature and context of the employee's activity and the national identity of the Member State.

The Advocate General’s opinion is not binding on the ECJ and national courts,  We will therefore have to wait to see whether the ECJ agrees in its final ruling. However, this opinion is interesting for a variety of reasons. 

  • First, the opinion describes the expression of a religious belief through a physical object, eg wearing a headscarf, as to some degree a matter of individual choice. The Attorney General takes the view that it may on this basis be justifiable to ask that individual to show some flexibility or restraint in how they express their religion. The opinion contrasts this with other protected characteristics, for example, race or age, which cannot be altered or adapted by the choices of the individual.  This appears to open the door to a hierarchy of protected characteristics, with factors such as race or age potentially receiving greater protection than religion or belief, which the individual could choose to express differently.
  • The opinion did not acknowledge that such an approach will clearly affect some religions more than others: some religions demand a particular dress code or other physical manifestation whilst others do not;

  • The opinion also suggests that the identity of the member state could be a relevant factor in whether discrimination can be justified. This implies that the application of equal treatment laws can vary depending on the political or cultural sways of a particular member state.  This could be highly significant – and politically charged - given there is a divergence of national attitudes on this issue, for example France with its concept of laïcité or secularity, which seeks to maintain a strict separation between religious and governmental affairs.

  • Whilst acknowledging the sensitivity of the issue, the opinion also wades into the wider question of diversity by asking 'how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities'.

Regardless of what is decided in the EU referendum next week, consideration and engagement with these workplace issues will remain key for employers, particularly as workforces become increasingly diverse. G4S was aided in its consistent approach on this issue, which bolstered its position that it was not targeting any particular religion, but rather promoting a carefully neutral image for valid commercial aims. Employers who impose a dress code should give careful thought to whether it is consistently applied, non-discriminatory and genuinely justified.

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