It has become the norm for employers to set the standards for what is acceptable to wear to work. Dress codes and appearance play an important role at the workplace. There may be various reasons for an employer to set a dress code, most important among which is the image that an employer would like to project to the public. A uniform communicates a corporate image, while work-appropriate attire creates a professional image.
An employer’s dress code, however, must not be discriminatory. In the EU, the Anti-Discrimination Directive on equal treatment in employment and occupation lays down a general framework intended to combat discrimination on the grounds of religion or belief, disability, age or sexual orientation. In establishing the principle of equal treatment, the Directive prohibits all forms of discrimination, whether direct or indirect, unless there is an objective justification based on a legitimate aim.
Regulating the right to wear articles of clothing that manifest the religious faith of an employee has proved to be a thorny issue for employers.
The Court of Justice of the European Union (CJEU) was requested to provide answers on whether a private employer is permitted to prohibit a female employee of Muslim faith from wearing a headscarf at the place of work.
There is no need to emphasise the high degree of sensitivity surrounding this question, particularly in the light of the fact that the headscarf is a symbol in itself, and ruling on religious symbols touches upon the employees’ right to demonstrate their faith through their dress.
Under the microscope in this case was the dress code policy adopted by G4S Secure Solutions, a Belgian company, whereby it prohibited its employees from wearing any visible religious, political or philosophical symbols whilst at work.
When Samira Achbita, an employee, started wearing a headscarf at work, she was dismissed for failing to abide by her employer’s neutrality approach.
Ms Achbita brought a claim for wrongful dismissal alleging direct discrimination. The Belgian Labour Court dismissed her claim, a decision that was also confirmed on appeal. Dissatisfied, the employee petitioned the Court of Cassation, which made a reference to the CJEU for guidance.
Prior to delivering judgment, Advocate General Kokott in May 2016 did not find any direct discrimination. In the Opinion, Kokott considered that the employee had not been treated less favourably and G4S’s policy was founded on the objective to enforce a legitimate policy of religious and ideological neutrality.
The Advocate General felt, however, that there could be indirect discrimination. This type of discrimination may be objectively justified as an occupational requirement, subject to a proportionality assessment based on the size and conspicuousness of the symbol, the nature and context of the employee’s activity and the national identity of the member state concerned.
The decision of the CJEU of March 14, 2017 cleared the uncertainty surrounding this sensitive issue. The Luxembourg Court concluded that prohibiting the visible wearing of any political, philosophical or religious sign, such as a headscarf, does not constitute direct discrimination if it is based on an internal company rule of a private undertaking that applies to everyone. The ban would be legitimate if the policy is applied across the board and indiscriminately to any manifestation of a religious belief. In addition, the policy must also be objectively justified by a legitimate aim as otherwise it would be tantamount to indirect discrimination.
The court considered that an employer that wishes to project an image of neutrality towards customers is in itself an exercise of the freedom of conducting a business, as recognised by Article 16 of the Charter of Fundamental Rights of the European Union. In order to be legal, however, such a policy should apply to those workers only who are expected to come into contact with the customers of the employer.
The court did not rule out that such a prohibition may constitute indirect discrimination if it were established that the apparently neutral obligation it imposes results, in fact, in persons who adhere to a particular religion or belief being put at a particular disadvantage.
However, such indirect discrimination may be objectively justified by the legitimate aim of a policy of political, philosophical and religious neutrality.
The ruling of the Luxembourg Court is binding in particular on the referring court but more generally as to the interpretation of EU law on the national courts of all member states.
jgrech@demarcoassociates.com
Josette Grech is adviser on EU law at Guido de Marco & Associates.