Dismissed for Wearing a Hijab (Employment Law Update)

Thanks to Daniel Barnett of Outer Temple Chambers for the following update:

You'll have seen a massive amount of misreporting in the press this morning, and I know a lot of you will be asked about it.  I thought I'd put together a short briefing for members of the Inner Circle.  Please feel free to pass this on to whomever you want.

A case is brewing in Belgium which could have a big impact in the UK when it comes to the treatment of religious observance and dress in the workplace. In Achbita v G4S Secure Solutions NV the employee – a Muslim woman - was dismissed for insisting on wearing a hijab (or headscarf) when at work. The employer had a blanket rule forbidding any customer-facing employee from wearing visible religious symbols or dress in order to preserve a strict ‘neutrality’ in its dealings with customers. The Belgian Court referred the matter to the European Court of Justice asking whether a dismissal in such circumstances amounted to direct discrimination.
 
The case has yet to be decided, but a strictly non-binding opinion has been issued by an official known as the Advocate General. She has taken the view that there was no direct discrimination in this case and that although there may have been indirect discrimination, the employer’s policy was probably justified.
 
Her view is that a ban on religious dress in the workplace applies equally to all employees – religious or otherwise. She points out that G4S would also have dismissed a Sikh man wearing a Turban, a Jewish employee wearing a kippah or a Christian wearing a crucifix. The Advocate General takes the view that the employer’s policy of neutrality is a legitimate one and that it is broadly proportionate to dismiss employees who do not comply with the dress code.
 
This is an opinion which should be treated with extreme caution. Ultimately it is the decision of the European Court of Justice that matters – and that is probably still some months away. In the meantime, it is unlikely that a UK Employment Tribunal would take a similar view. Whatever the merits of the direct discrimination point, an employer is unlikely to be able to persuade an Employment Tribunal that a policy of ‘neutrality’ is a sufficient reason to dismiss a Muslim woman who feels a religious obligation to wear the hijab at work. The UK is clearly a more diverse society than Belgium and a tolerance or, better yet, a celebration of that diversity is probably a wiser strategy for employers to follow.