Latest EU opinion conflicts with previous view on dress code ban
An Advocate General (AG) of the European court has just published an opinion which concludes that a company policy requiring an employee to remove her Islamic headscarf when in contact with clients constitutes unlawful direct discrimination. In the AG's view, this cannot be a ‘genuine occupational requirement’ because the freedom to conduct a business (one of the principles of EU law) is subject to the need to protect the rights and freedoms of others.
The opinion in the case in Bougnaoui v Micropole Univers conflicts with another recent AG opinion in a case called Achbita v G4S Secure Solutions, which concluded that an employer's adherence to a neutral dress code was legitimate and proportionate.
In Bougnaoui, a design engineer was sent by her employer to clients. A customer complained that the veil she wore "embarrassed" a number of its employees, and asked that this did not happen again. The employer discussed this with Bougnaoui and asked her to observe a principle of "neutrality" in relation to her dress when dealing with clients. She refused and, as a result, was dismissed.
She brought a claim for discrimination and the French court referred the issue to the Court of Justice of the European Union (CJEU), asking if a customer’s wish to no longer have the company’s services provided by an employee wearing an Islamic headscarf constituted a ‘genuine and determining occupational requirement’ under the equality directive.
Advocate General
In the AG's view on the Bougnaoui case, 'genuine and determining occupational requirement' defence against a discrimination claim available to employers must be interpreted strictly and the directive states it only applies in limited circumstances. The opinion concludes that it cannot be used to justify a blanket exception as in this case. The AG decided that although a neutral dress code policy might be in the interests of the employer's business, and so constitute a legitimate aim, it was difficult to see in this case how the employer's prohibition on the engineer wearing a headscarf could be regarded as proportionate.
In the Achbita case, the AG decided that the employer’s ban on wearing Islamic headscarves was a genuine and determining occupational requirement, and the company's adherence to a neutral dress code was both legitimate and proportionate. The AG in that case thought the ban was an appropriate way of implementing a legitimate corporate policy of neutrality.
Comment
It will now be left to the CJEU to resolve the disparity between the two AG opinions. In the meantime, it's worth remembering the European Court of Human Rights’ decision in the case Eweida v United Kingdom. That court held that the UK had failed to protect Eweida's right to wear a discrete Christian cross outside her uniform. The decision suggests that EU law requires employers to accommodate employees making an outward show (manifesting) their religious beliefs which the AG opinion in Achbita, with its view on the legitimacy of a neutral dress code, seems to be at odds with.
Until a decision is reached by the CJEU, employers should ensure they avoid dress codes that restrict an employee's right to wear clothing or symbols associated with their religious beliefs. If there is a prohibition on such items within a company’s dress code, then it will be up to the employer to ensure it establishes a balance between the reason for the prohibition and the disadvantage to the employee.
Nicola Ihnatowicz is a partner in the employment team at Trowers & Hamlins LLP
For more employment law articles, visit HR-inform
