Religious attire: recent ruling clarifies legal position in Europe

In Europe, dress codes and other restrictions on appearance at work can cause legal problems for employers when they impact upon employees who adopt religious attire, such as Islamic headscarves and Christian crosses.  A recent ruling has provided valuable clarification for European employers.

Businesses within the European Union (“EU”) are banned from discriminating against staff on grounds of religion (as well as on other  grounds including race, sex, disability and sexual orientation).

Workplace disputes about religious attire can be expensive and damaging for European employers, as they attract potentially uncapped compensation awards. However, this law has been interpreted differently across EU countries, making it difficult for employers to apply a consistent approach.

Now a recent ruling from the highest EU court has provided welcome clarification, in two cases involving staff who wished to wear an Islamic head covering to work (in France and Belgium).  The court established the following principles:

• A consistent policy prohibiting religious attire can be lawful provided it is adequately justified.   This is where real difficulty remains for European employers: “justification” is always a grey area.  It is based on the specific circumstances of both employer and employee and involves a balancing of the employer’s aims in imposing a dress code against the effect on the employee.
• However, prohibiting religious attire on the basis of a customer or client request is unlikely to constitute justification.  

Three practical steps for employers in Europe

1. Assess discrimination issues before imposing dress codes

• Employers considering imposing a dress code should assess its potential impact on groups protected under EU discrimination laws, such as religious or ethnic groups.
• Where there will be a particular impact on such a group, the employer must ensure its policy is consistent (and does not single out particular groups) and justified on objective grounds – and not just in response to a customer request.

2. Obtain local advice where necessary

• Step 1 will entail a judgment call for the employer based on weighing up the impact on the affected group, and the needs of the employer.  We are experienced in advising employers on how to analyse and document this tricky balancing act whether in the UK, or across other EU jurisdictions, via the CELIA Alliance network which provides integrated multi-disciplinary legal and tax services for international HR.

3. Consider local cultural attitudes in global mobility programmes

• Cultural attitudes towards religious attire vary between European countries. Some commentators have argued that these disputes may be more likely to arise in, for example, France (as it did here), which enshrines the principle of secularism in its domestic law.  If you or your clients have a global mobility programme into Europe, it’s worth taking account of these cultural issues, and our global mobility experts are ideally placed to assist with this.

For further information, please get in touch.
Resources:
EU Directive on Equal Treatment on grounds of religion or belief, disability, age or sexual orientation
Cases:
Achbita and another v G4S Secure Solutions NV (Case C-157/15)
Bougnaoui and another v Micropole SA (Case C-188/15)

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