Dress codes and discrimination in the workplace

Many employers have dress codes in place. This can range from a certain style of clothing to a set uniform that must be worn.  Historical case law has considered issues where dress codes could be viewed as discriminatory or in breach of the rights of individuals to manifest their religious beliefs such as wearing a crucifix at work.

This issue has been further highlighted by recent cases in Europe.  Two claims originating from Germany have been heard at the European Courts of Justice (ECJ) to clarify if the treatment of the employees concerned amounted to direct or indirect discrimination on the grounds of their religion or belief. The cases in question are  IX v WABE eV and MH Müller Handels GmbH v MJ.

Dress codes and discrimination in the workplace

What types of discrimination claims could arise from workplace dress codes?

The two key claims that are likely to arise are direct and indirect discrimination.

Direct discrimination can arise when an individual is treated less favourably because of a protected characteristic. In the circumstances being considered, the relevant characteristics are likely to be race, religion or philosophical beliefs.

Indirect discrimination can arise when an employer has a “provision, criterion or practice” such as a dress code which when applied equally across all employees, places certain individuals at a disadvantage because of a protected characteristic.

Details relating to the case of IX – v – WABE eV

In this case, the employer was a daycare centre. The daycare centre had a dress policy that prohibited employees from wearing visible signs of their political, philosophical, or religious beliefs. This policy was considered to be “Neutral”.

 What was different about the case of MH Müller Handels GmbH – v – MJ?

In this case, the employee worked as a sales assistant and cashier. Her employer requested she removes her Islamic headscarf. When the Claimant refused to do so, she was sent home. The Claimant was informed she could only return without “conspicuous, large-sized signs of any political, philosophical or religious beliefs. “

The decision in the case of IX – v – WABE eV

In  IX – v – WABE eV, the ECJ ruled that there would not be direct discrimination (less favourable treatment upon the grounds of religion) upon the application of this policy, as long as all workers were treated equally.

As the policy did not target any specific religion, the dress code would not be considered to directly discriminate. The ECJ further considered that there would not be indirect discrimination if the employer had a genuine need for the rule and such rules were properly applied and limited to what was strictly necessary.  In this case, the employer relied upon the rights and wishes of parents to ensure a neutral education in respect of religious, philosophical, and teaching beliefs.

The contrasting decision of the ECJ in the case of MH Müller Handels GmbH – v – MJ

In contrast to the previous case,  MH Müller Handels GmbH – v – MJ showed a dress code policy that was likely to result in direct discrimination. The ECJ considered the wording “conspicuous” or “large-sized” as being likely to adversely affect certain religions or beliefs that required followers to wear “large-sized” items such as head coverings or scarves. By contrast, other religious adherents, such as Christians who might wear a small crucifix, were significantly less likely to be affected by this policy.

In terms of indirect discrimination, the ECJ found that a dress code could only be justified if it were to prohibit all signs of different beliefs so as to not put any one particular group of individuals at a disadvantage.

The following link will provide access to the full Judgments given by the ECJ on the above matters: https://www.bailii.org/eu/cases/EUECJ/2021/C80418.html

Don’t hesitate to contact us for professional legal advice if you are also faced with religious discrimination in your workplace.  Our solicitors are on hand to provide you with the help you need.

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