What does Europe\'s workplace headscarf ban mean for employers in Tayside?


26th April 2017

A local employment law expert from solicitors Miller Hendry has claimed employers in Tayside CAN ban women from wearing Islamic head scarfs.

Europe\'s top court has ruled that it is not direct discrimination for companies and organisations to stop employees from wearing the hijab or any other religious and political symbols.

But any ban must be based on internal company rules that require all employees to \"dress neutrally\", said the European Court of Justice (ECJ) in Luxembourg.

It cannot be based on the wishes of a customer, it added.

The court gave a judgement in the cases of two women, in France and Belgium, who were dismissed for refusing to remove hijabs, or the headscarf worn by many Muslim women who feel it is part of their religion.

The first case was referred to the ECJ by the Belgian courts. Samira Achbita was fired in June 2006 for wearing a headscarf to work at security firm G4S in Belgium.

The court found that G4S\'s internal rule treated all employees in the same way, requiring them all to dress neutrally without any visible signs of political, philosophical or religious beliefs.

However, the court did not rule out the possibility the dress code might amount to indirect discrimination.

But Alan Matthew, employment law expert at Tayside-based solicitors Miller Hendry, explained: \"Although apparently neutral, the results of such a ‘neutral\' dress code may in fact disadvantage people of a particular religion.

\"An employer\'s desire to project an image of political, philosophical and religious neutrality towards its customers can be a legitimate aim. However, the court queried whether it was possible to offer the employee a post not involving any visual contact with those customers, rather than dismissing her. If this was a possibility, then the dismissal probably amounts to indirect discrimination.\"

So, what can employers in Tayside take from this decision?

Alan Matthew continued: \"First, when applying a dress code rule, work out exactly what it is you are trying to achieve.

\"Secondly, consider whether you are applying the rule in a genuine and consistent way. For example, if your main motivation for the rule is customer perception, do you need to apply the rule to non-customer facing employees?\"

In the second case, Asma Bougnaoui, a design engineer, was fired from French IT consultancy firm, Micropole, after a customer complained that his staff had been \"embarrassed\" by her headscarf while she was on their premises to give advice. She had been told before taking the job that wearing a hijab might pose problems for the company\'s customers.

Micropole asked her not to wear the headscarf next time she met those clients. Bougnaoui refused and was dismissed.

The ECJ said the case turned on whether there was an internal company rule in place applicable to all, as in the G4S case, or whether the client\'s demand meant Bougnaoui was treated differently.

The court concluded that Bougnaoui had indeed been treated differently and so the client\'s demand that she not wear a hijab \"cannot be considered a genuine and determining occupational requirement\".

Closer to home, Police Scotland threw the spotlight on workplace dress codes when Chief Constable Phil Gormley announced that women from Muslin communities could wear the hijab as part of their uniform.

Mr Gormley said it was part of an attempt to encourage Muslim women to consider pursuing a career in the force.

Officers and police staff have always had the option to wear religious headwear, but the August 2016 announcement ratified the use of the hijab.

For further advice or information on employment law or other legal issues, visit www.millerhendry.co.uk

Miller Hendry

Miller Hendry is one of the longest established and largest legal firms in Tayside. With 16 partners and 150 staff, through our offices in Dundee, Perth, Crieff, Comrie and Auchterarder we provide a wide range of legal expertise to our clients. As well as a sizeable Estate Agency and Property Services business we have specialists in Court, Private Client, Asset Management and Commercial work.

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