Nabila Mallick: The implications of the ECJ Hijab decision in the UK Workplace

Thu, 16 Mar 2017

Barrister - nabila mallick

I have been concerned by the misreporting of the ECJ decision 14th March 2017 concerning workplace religious discrimination challenges by women who wish to wear the Hijab where a policy of religious neutrality operated. The Metro Newspaper (dated the 15th March 2017 ) reported that you can now ban religious dress in UK workplaces, that is not the case.  

The ECJ opined that there could not be direct discrimination of Employees who wore the Hijab, because all Employees were subject to the same dress code instructions, therefore it could not be argued that there was less favourable treatment, as they were not treated any differently to anyone else, (The ECJ ignored any discussion of religious beliefs as an immutable characteristic and therefore it is questionable whether it properly considered the issue of direct discrimination within the legal framework of the Equal Treatment Directive).

However, the ECJ opined that there could be indirect discrimination, if the policy requiring religious neutrality in the workplace, placed Muslim Hijab wearing women at a disadvantage. The UK Employment code suggests that in some situations, the link between the protected characteristic (religious belief) and the disadvantage might be obvious, for example dress codes that do not allow Muslim women to wear a headscarf would disadvantage Muslim women. In Noah v Desrosiers t/a Wedge (ET), the hair salon Employer conceded that Muslim women were placed at a disadvantage by such a dress code.   

The ECJ further held that with indirect discrimination claims, the Employer would have to demonstrate objective justification for placing Muslim (hijab wearing) women at a disadvantage.  This in my opinion, whilst less difficult a defence for private Employers in  France, where public Employees are not permitted any form of religious dress because of the policy of neutrality, could not be easily argued by Employers in the UK. In fact Prime Minister stated on world Hijab day  1st February 2017, no woman should be discriminated by what she chooses to wear ‘.  Moreover, a recent parliamentary report released on the 6th March 2017 has already raised concerns amongst MPs about dress code discrimination in the workplace. Muslim women have generally do not suffer dress code restricted, although of course that is not to say that they are not being discriminated against because of their appearance of course such discrimination, whilst unspoken is nevertheless unlawful (I will address this issue in a follow up article)..     

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' . 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 was not, in their 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 and the Equality Act 2010 does, the ratio is nevertheless applicable to religious discrimination claims.

It is the decision of Mandla v. Dowell-Lee [1983],  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, in  another decision a 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 the view  that  had she claimed for indirect discrimination instead, she would have succeeded. 

Our body of jurisprudence allows for greater protection than other countries around Europe. Although the ECJ decision is not inconsistent with ECHR decisions in Dahlab v Switzerland (2001) and Eweidav BA on Article 9 – right to manifest faith (which permits a defence to Employers). In the later case the court found that it would be a breach of Article 9 not to allow Ms Eweida to wear her  Christian cross under a dress code that prohibited such jewelry, where others were allowed to manifest their religious beliefs through dress - for instance Turbans were permitted.  

On reading Mandla v Dowell Lee and the case of Eweida v BA, it is my opinion that our approach is likely to be more like the US Supreme Court  decision in protecting rights of those who wish to wear the headscarf.  Equal Employment Opportunity Commission v. Abercombie & Fitch Stores Inc which decided that the Employee wore a head cover for religious reasons and the head-cover could not have a part to play in any Employment decision, irrespective of the Employers look policy. 

I hope that this assists in the further reporting of this matter in the future. I hope that I have addressed the wrongful  impression that UK Employers can now start restricting the wearing of headscarfs.

 

Nabila Mallick is a member of the Employment, Human Rights and International Groups.

She has a keen interest in religious discrimination issues both in the UK and Internationally.

She can be followed on LinkedIn and Twitter.
 

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