Dress code discrimination in the workplace
Is it discrimination to prevent staff from wearing religious symbols and dress at work?
The pandemic made most workplace dress codes redundant, as many staff swapped in-person meetings and business attire for video calls from the kitchen table in casual clothes.
Dress codes exist to help an employer ensure that their employees wear appropriate attire for the nature, culture, and image of the business. With COVID-19 restrictions lifted and workplaces now open, businesses are faced with planning and enforcing dress codes once more.
In this article, we will be looking at two recent cases in which the ECJ was asked to consider whether dress codes could be deemed direct or indirect discrimination for prohibiting religious dress and symbols of belief.
What is direct and indirect discrimination?
Discrimination laws prohibit discrimination on several grounds, including age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation (also known as “protected characteristics”).
Direct discrimination is where an individual is unfairly treated because of their protected characteristic, such as a woman being refused a job because she is a woman, and a less qualified man is hired instead.
Indirect discrimination can occur when policies or practices that affect a group of employees or job candidates are, in practice, indirectly discriminatory to people with certain protected characteristics.
Indirect discrimination, if proven, can be objectively justified by a legitimate business aim, where the means of achieving that aim are appropriate and necessary. However, it is impossible to objectively justify direct discrimination (other than in some age discrimination cases).
Workplace discrimination law facts
IX v WABE eV
IX was employed in Germany as a special-needs carer in a child centre run by WABE. WABE applied a policy of political, philosophical, and religious neutrality. Its staff were not permitted to wear any sign of their political, philosophical or religious beliefs visible to parents, children and third parties whilst at work. Despite this, IX wore an Islamic headscarf to work several times. IX was given warnings and suspended.
MH Müller Handles GmbH v MJ
MJ was employed as a sales assistant and cashier in a store in Germany. She refused her employer’s request to remove her Islamic headscarf and was sent home. MJ’s employer told her to attend her workplace without ‘conspicuous’ or ‘large size’ signs of political, philosophical or religious beliefs.
Both employees brought claims of discrimination in the German courts, who then applied to the European Court of Justice (ECJ) for its opinion on whether the policies amount to direct religion or belief discrimination and, if they amounted to indirect discrimination, whether this could be objectively justified.
The ECJ concluded that, in the case of WABE, the rule was not directly discriminatory as it had a universal and equal application and covered any visible manifestations of any belief. Even though the policy may have caused a particular inconvenience to staff wearing religious clothing, the ECJ felt that the dress code had been applied in a general and undifferentiated way and noted that another employee had been prevented from wearing a cross.
On the question of objective justification, the ECJ said that an employer’s desire to display a political, philosophical or religious neutrality policy in its relations with customers could be a legitimate aim. However, a mere desire for this was not enough to objectively justify indirect discrimination. The employer would need to go further and evidence a genuine need for such a policy.
In WABE, this “genuine need” was the need to take account of parents’ wishes to have their children educated in line with their own religious beliefs or to ensure that a teacher will not manifest their own religious beliefs upon their child.
The ECJ also clarified two other conditions for objective justification: in pursuing neutrality, the rule must be applied in a consistent and systematic manner; and must be proportionate and reasonably scoped in trying to achieve its aims. Here, the ECJ may have been influenced by the fact that staff at WABE’s headquarters were excluded from the restriction as they did not interact with parents or children.
In contrast, the ECJ ruled that the dress code in Müller, which only stopped large signs of beliefs, could be directly discriminatory as having a disproportionate impact on people with beliefs requiring larger signs to be worn, such as head coverings. For the same reasons as in WABE, indirect discrimination arising from such a ban could only be justified if the ban had extended to all visible forms of beliefs (rather than just conspicuous ones).
Following Brexit, UK courts and tribunals are no longer bound by ECJ rules. Nonetheless, they can have regard to such decisions if they wish, and we see this as a useful case for UK employers. The ECJ’s ruling means that employers should carefully plan any restrictions they want to include in their dress codes to ensure that they are proportionate to the legitimate aim they are trying to achieve and are also enforced in a consistent manner.
Patrick is an Associate in the Myerson Employment department. He is known for providing succinct and pragmatic advice to clients on a broad spectrum of employment and advises on various contentious and non-contentious employment issues, from day-to-day HR matters to more complicated restructuring and redundancy projects.