A recent judgment from the European Court of Justice has empowered Employers with the right to ban religious clothing and symbols in the workplace.
This power has always existed where there has been a Health and Safety issue and an employee might be putting themselves or others in danger when wearing clothes that are inappropriate for the job in question.
Yet Article 9 of the Human Rights Act quite clearly provides all European citizens with the right of freedom of thought, conscience and religion. Discriminating against this fundamental right of religious freedom has meant that employers have been reluctant to dictate what an employee can or cannot wear.
Discrimination is of course to be avoided and is still not allowed, however the new ruling does allow employers to adopt a neutral dress code for their employees and can ban religious, political or philosophical attire.
A few years ago, British Airways encountered problems when banning their staff from wearing crucifixes. It was found in the European Court of Human Rights that an employee had been discriminated against when she was told to remove her cross.
In these recent cases, it was found that two employees wearing Islamic headscarves did not suffer discrimination when they were sacked for refusing to remove the scarves in question. The reason that this was not considered discrimination was that at both companies there existed rules banning employees from wearing visible signs of their political, philosophical or religious beliefs at work.
How to implement a “neutral” dress code in a workplace with a large workforce could pose a problem and might be expensive. And whilst the judgment against British Airways in the European Court of Human Rights appears to contradict this recent ruling in the European Court of Justice, the BA dress code rules may have been worded differently. The two Courts have different jurisdictions and it may be that in future much will depend upon which court cases are heard.
We would advise caution if imposing a dress code and employers should decide why a dress code is in place in the first instance and what the dress code is trying to achieve before making any challenging decisions that could prove unpopular with its workforce.
John Newcomb is Director of Maidstone based Sahota Newcomb Scott Solicitors