Dress codes: do you run the risk of a discrimination claim?
This issue was considered by the European Court of Justice ("ECJ") in the Belgian case of Achbita and another v G4S Secure Solutions NV.
Ms Achbita was employed by G4S Secure Solutions NV ("G4S"), as a Receptionist. At the time she commenced work, G4S had an unwritten rule that no one was allowed to wear visible signs of their political, philosophical or religious beliefs in the workplace. Ms Achbita originally did not wear an Islamic headscarf, but in April 2006 (3 years after commencing her employment with G4S), she told G4S that she intended to wear a headscarf to work on account of her religious beliefs. In May 2006, G4S put its unwritten rule into its code of conduct, which stated "employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them". Importantly, this only applied to those in customer-facing roles.
Ms Achbita was subsequently dismissed when she insisted on wearing her headscarf and, in doing so, refusing to adhere to G4S's dress code policy. She brought a claim for religious discrimination.
What was the decision?
The case went all the way up to the ECJ, where it was confirmed that G4S's policy did not constitute direct discrimination. This was because there was no basis on which to say that Ms Achbita was treated differently when compared to any other worker. The policy applied across the board, which meant that no employee could wear any kind of religious symbol – headscarf, kippah or otherwise.
The ECJ went on to confirm that the policy could constitute indirect discrimination. G4S were applying a "provision, criterion or practice" that disadvantaged employees of a particular religion or belief. The ECJ considered whether G4S would have a defence by being able to show that the policy was objectively justified. To satisfy this test, G4S needed to show that the policy was a proportionate means of achieving a legitimate aim. The ECJ found that the policy - upholding political, philosophical or religious neutrality in customer-facing roles – was a legitimate aim. The ECJ went on to say that whether or not the legitimate aim was proportionate was something that the national court should determine, but it indicated that, in general, a legitimate aim will be proportionate if it is followed in a consistent manner and is only imposed so far as it is absolutely necessary. The ECJ suggested that in applying this policy to only those in customer-facing roles, it may be that G4S had satisfied this.
What does this mean in practice?
There are no real surprises in this decision which is the latest in a line of cases that deal with dress code, particularly in the context of religion. These cases confirm that whilst a dress code of this kind will not amount to direct discrimination, it is likely that it will be indirect discrimination. Whilst the caselaw in this area is helpful in that it shows that businesses are able to impose some relatively restrictive policies and not fall foul of the law, it should still be approached with caution: it does not give businesses free rein to impose policies without carefully considering whether they can be justified. For example, in a similar case, British Airways were not able to satisfy the European Court of Human Rights that their dress code policy, which prohibited an employee from wearing a necklace with a crucifix, was a proportionate means of achieving their legitimate aim of upholding their corporate image. Indeed, some businesses may consider that diversity should be embraced and wish to attract and retain the best candidates for roles within their company, regardless of whether they wear a headscarf or other religious symbol. Negative PR can also stem from a restrictive dress code policy, such as the recent media storm around Portico's policy that women had to wear heels in the workplace.
If you have a dress code or are thinking of introducing one, consider:
- Does or would the policy disadvantage some employees more than others?
- What is your aim of the policy?
- Does it only go as far as is necessary to achieve that aim?
- Is there any other way the aim could be achieved that is less restrictive?