Article / 4 Aug 2021

Dress policy and discrimination

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Gateley Legal

Issue

It’s a requirement that for some roles that employees wear a uniform or at least wear clothes that meet with strict requirements that the employer has set. The issue in the cases of IX v WABE eV and MH Müller Handels GmbH v MJ was whether an employer’s instruction that the employees should not wear any visible sign of political, philosophical or religious belief could amount to direct or indirect discrimination on the grounds of religion or belief.

Facts

Both cases involved employees who had been suspended for wearing an Islamic headscarf. The first was a special needs carer in a child day care centre who had breached her employer’s neutral dress code policy which did not permit employees to wear visible signs of their political, philosophical or religious beliefs in the workplace. The second was a sales assistant in a store who had been told she should not wear ‘conspicuous, large-sized signs’ of any political, philosophical or religious beliefs. 

Decision

The European Court of Justice held that whilst a rule prohibiting workers from wearing any visible sign of political, philosophical or religious belief in the workplace did not constitute direct discrimination banning only conspicuous, large-sized signs could discriminate against those with beliefs which required the wearing of a large-sized sign. It also considered that in order justify any dress code policy if faced with an indirect discrimination claim the employer would need to show a genuine need for the policy. 

Key point

The important point is that a purely neutral rule that prohibits any signs of belief was considered not capable of amounting to direct discrimination. It follows that an employer should not limit the prohibition to just certain types of signs. The genuine need for the neutral dress code policy that was required to defeat an indirect discrimination claim may be established by reference to the customers or service users’ legitimate wishes. The decision shows that a considered neutral dress policy will not discriminate.

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