HeadScarfs and Turbans: Are you protected?

16.03.17

The  Metro Newspaper dated 15th March 2017  headlined on its front page that Employers could ban Headscarfs. This was a reference to the decision of the European court of Justice where two Headscarf wearing Muslim women challenged their Employers code of conduct, which prohibited the wearing of any visible signs of their political, philosophical or religious beliefs in the workplace (and on engaging in any observance of those beliefs).

Samira Achbita v G4S

On 12 February 2003, Samira Achbita, a Muslim, was employed as a receptionist by G4S (a company that provides customer facing security services to both the private and public sector).  At the time of Ms Achbita’s recruitment there was an unwritten rule (ie not contained in the contract of employment or staff handbook but imposed through Management instructions) within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace.

In April 2006, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, she was informed that wearing of the headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers. Ms Achbita attended work wearing her headscarf.

On 29 May 2006, the G4S  approved an amendment to the workplace code of conduct adopting the unwritten rule. Ms Achbita was then dismissed for continuing to wear her Headscarf despite management instructions. She challenged her dismissal in the Belgium courts, who made a referral to the ECJ.

Asma Bougnaoui v Micropole

Ms Bougnaoui met a representative of Microplole at a student fair where she was offered an internship, which she commenced on the  4 February 2008. At the point, she was wearing a simple bandana. She subsequently wore an Islamic headscarf at work, whilst still interning.  At the end of her internship, Micropole were obviously impressed by her and employed her, from 15 July 2008, as a design engineer under a contract of employment of indefinite duration.

However, despite sometime of working as a design engineer successfully at Micropole, following a complaint from a customer to whom she had been assigned that he did not want the services of a woman wearing a Headscarf,, she was instructed not to wear the Headscarf. When Ms Bougnaoui refused to take off her Headscarf, Micropole dismissed her on the grounds of refusing to follow the instructions of maintaining workplace neutrality. She challenged her dismissal in the French Courts, who in turn made a referral to the ECJ

Niether G4S nor Micropole seem to have considered, alternative non-customer facing roles for either Employee, before making the decision to dismiss.

The ECJ provided the opinion in both cases that there was not workplace discrimination of the employee if the code of conduct or instructions, setting out an aim for workplace ‘neutrality’ applied to all Employees. This is because in order to obtain a finding that you have personally as an Employee been discriminated against by an Employer, you must be able to demonstrate ‘ less favourable’ treatment to other Employees. If all Employees were treated the same i.e  all not allowed to wear anything that showed their faith, then there could not be less favourable treatment because of faith.

However, the ECJ recognised that a claim for indirect discrimination could be brought against an Employer applying a neutral code of conduct or instructions, where it places Muslim Employees at a particular disadvantage. The intention to have a neutral workplace is irrelevant, if it can not be justified to achieving a legitimate aim ie a genuine occupational requirement. The ECJ opined that an Employer could have objective justification, if it were trying to meet the aim of neutrality in its relationship with its Employees.

What does the ECJ decision mean for Head -Coverers in the UK? 

In a much forgotten case of  Mandla v. Dowell-Lee [1983], a sikh boy brought a challenge against a school dress code that was introduced to ‘ minimise external differences between races and social classes’ . In addressing indirect discrimination, the House of Lords decided that it was for the Employer to show that the condition which he seeks to apply is in all circumstances justifiable without having regard to  ‘colour, race, nationality or ethnic or national origins of the person to whom it is applied’ . But in this case the principal justification on which the Employer relied upon was that the Turban was objectionable  because it was a manifestation of  ethnic origins. The House of Lords concluded that this is not, in ther view, a justification which was lawful. Whilst this case was decided under the old Race Relations Act 1976, which did not provide protection for religious discrimination under a separate category, the Equality Act 2010 does. It is this decision that provides protection against Employers in the UK from introducing dress codes with the aim of creating a neutral workplace environment, by prohibiting the manifestation of faith. For instance in a recent case brought by a Sikh Police Constable against Greater Manchester Police, an Employment Tribunal made a finding of indirect discrimination because the PC was instructed not to wear his Turban for riot training. Similarly, another decision Muslim woman who claimed unfair dismissal and religious discrimination against a London store who wished to preserve a trendy image, was forced her to resign for insisting on wearing the Headscarf, under the pretext of being late back from lunch. The Claimant did not succeed in her claim for direct discrimination but did for unfair dismissal. The Tribunal expressed that she claimed for indirect discrimination instead, she would have succeeded.

It is my opinion, that UK law will continue to provide the long standing protection afforded to those who wish to  manifest their faith through covering their heads be they headscarfs, Turbans or indeed skull caps.

Written by Nabila Mallick, Barrister at NO5 Barristers’ Chambers

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