Law on workplace dress codes still up in the air
Europe’s top court is about to rule on a hugely contentious issue, says Caroline Maher
There is a trend at the moment for clothing to raise some intriguing legal questions.
Hot on the heels of the outcry over a receptionist whose employer asked her to leave the workplace for refusing to wear high heels, is the case of Samira Achbita. She was dismissed by a Belgian security services company (G4S) for refusing to remove her headscarf whilst at work, thereby flouting G4S’S ban on any visible religious, political or philosophical symbols in the workplace.
Ms Achbita’s claim for direct and indirect discrimination was referred to Europe’s top court, the European Court of Justice (ECJ), to determine whether such bans are legal under EU rules. This in itself raises interesting questions in this post-brexit referendum age as to where such issues pertaining to the UK will be considered in the future, and illustrates the current important role of the ECJ in domestic issues.
The ECJ’S Advocate General recently issued opinion on the Achbita case, which whilst non-binding, gives us a clear indication of how the ECJ will rule in the final judgment expected later this year.
The ECJ opinion stated that such bans are justifiable in certain circumstances. The reasoning behind this appears to have been based on this: “While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace.”
The opinion goes on to state that there was no direct discrimination as the dress code applied to all employees equally and unlike other protect- ed characteristics, the active expression of a religious belief is a matter of choice.
This is an interesting point as it appears to open the door to there being a hierarchy of protected characteristics, with race and age receiving a greater level of protection compared to religion or belief, for example.
It clear that this could be a contentious stance as some would argue that they should not have to show flexibility or restraint in relation to how they express their religious beliefs whilst at work. The opinion also failed to acknowledge that such an approach would clearly affect some religions more than others.
It is a complex and contentious matter, and only likely to get more complex and contentious.
Our society is undergoing seismic shifts, and at the heart of that is both an expanding multiculturalism and a perhaps unprecedented mainstream hostility to and suspicion of religions of all stripes.
Throw in the fact that we are entering uncharted waters as regards the United Kingdom’s imminent divorce from the continent, and it’s safe to say that predicting the next big thing on the catwalks of Milan will be considerably easier than guessing what might be de rigueur in the workplace five years from now. l Caroline Maher is an associate with CCW Business Lawyers, specialising in employment law