Confusion Reigns – Contradictory opinions in religious discrimination cases on dress codes

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Posted in:HR and Employment|August 1, 2016 | Join the mailing list

Last month, we reported on the case of Achbita v G4S Secure Solutions NV, in which an Advocate General of the European Court of Justice found that a ban on wearing religious items at work could be justified as a “genuine operational requirement”. Earlier this month, a different Advocate General found the opposite in a very similar case, as explained below.

In the latest case, Bougnaoui and another v Micropole SA, Advocate General Sharpston’s opinion was that dismissing a female Muslim employee for refusing to remove her religious headscarf, in line with the employer’s policy and after a customer had requested it, was direct discrimination (treating the employee less favourably on the ground of her religion than another employee would have been treated in a comparable situation) and could not be justified.

In a very different stance to the Advocate General in Achbita v G4S Secure Solutions NV (find our blog on this case here), Advocate General Sharpston said that:

• she could not accept that prohibiting an employee from manifesting their religion in this way was a ‘genuine and determining occupational requirement’;

• the ‘genuine and determining occupational requirement’ is an exception to the general rule that direct discrimination cannot be justified, and is only available ‘in very limited circumstances’;

• the employer could not rely on its commercial interests to justify the prohibition as a ‘genuine occupational requirement’ because direct discrimination cannot be justified on the ground that it causes financial loss;

• the freedom to conduct a business is a general principle of EU law. However, this freedom can legitimately be restricted in the interests of protecting the rights of others (including the right not to be discriminated against).

Clearly, the question of what is and is not permitted when it comes to dress codes, manifestations of religion and discrimination, has not been answered yet. We should have an answer later this year when the European Court of Justice considers these cases itself, but it is important that dress codes and equality/diversity policies are rigorously scrutinised if an employer does not want to end up in a difficult position and facing potential liability.

If your organisation doesn’t have an Equality and Diversity policy, it should get one as soon as possible. Get in touch and we can talk you through our offers on this and other policy documents.

Do you have an Equality and Diversity policy but don’t know if it is up to standard? We can review your existing policy to check it and/or bring it up to date for you.

We also offer training to ensure your staff understand this important area, helping to protect your organisation from potential issues and possible liability.

To find out more about the issues raised in this post, or to discuss any queries regarding equality, diversity policies for training for your business please get in touch with Kim Freeman- Smith or call +44 (0) 161 829 2599.

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by berg or any of its partners or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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