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2. We have an employee who recently began wearing a headscarf to the office. We would prefer for the workplace to remain free of any religious or political attire. Can we ban the employee from wearing her headscarf to work?

Julie Austin
26/05/2017

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Ireland

As the Irish workforce becomes more diverse, these concerns are becoming increasingly common. It is important that, as an employer, one can find a balance between being sensitive to the country’s increased diversity and the desire to maintain the workplace as a political, philosophical, and religion-neutral environment. If an employer wishes to implement a dress code or ban a particular item of clothing, it must ensure that it is proportionate to the employer’s objective or they may find themselves coming across claims of unlawful discrimination. In recent weeks, the European Court of Justice (ECJ) issued two landmark rulings in the area, which have generated a renewed level of discussion in the area. In the first case, Achbita v G4S Secure Solutions, a client-facing receptionist who was employed for a number of years informed her line managers that she intended to start wearing an Islamic headscarf during working hours. She was notified by management that wearing such a headscarf would not be tolerated as it was contrary to the company’s position on neutrality. The employee ignored her employer’s warning and was subsequently dismissed. In this instance, the court had found that as the policy did not introduce a difference of treatment of a particular member of staff based on religion or belief, it did not give rise to direct discrimination. However, the court stated that, although this was not evident on the specific facts of the case, such a policy may cause indirect discrimination if the seemingly neutral obligation the policy imposed results in people of a particular religion or belief being put at a unique disadvantage. Contrastingly, any such policy would be permissible if “objectively justified by a legitimate aim”, such as a policy of neutrality in the workplace. The second case, Bougnaoui v Micropole, concerned a design engineer who was dismissed by her employer after a customer complained that they were “embarrassed” by her headscarf while she was on their premises to give advice. During her recruitment she had been advised by the employer that wearing a headscarf might pose problems for its customers. As an intern, the employee wore a “simple bandana”, but when she was made a permanent employee, she began to wear an Islamic headscarf instead. The ECJ ruled against the employer on the specific facts of this case, as it seemed that the employer was more focused on the wishes of the particular customer than on applying a consistent internal rule. The matter is far from straight-forward. For example, in the European Court of Human Rights (ECHR) decision of Eweida v British Airways (a human rights rather than employment law case), an airline employee was awarded €2,000 compensation for injury to feelings plus legal costs, as she had been prohibited from wearing a visible religious cross, which the employer had said was in breach of its uniform policy. If an employer intends to implement a dress code or neutrality policy, it must ensure that it is proportionate to the objective, thereby avoiding any claims of unlawful discrimination. Although they are not binding on the Irish courts per se, these recent rulings demonstrate just how crucial it is for any employer to have a clear, unambiguous policy in place, and that these should be applied across the workforce in an indiscriminate manner. In 2013, the issue was addressed on a domestic level in the Irish High court in the case of An Garda Síochána v Oberoi (2013). Here, An Garda Síochána were required to defend their decision under the Equality Acts to disallow a member of the Sikh community from wearing his turban while on duty. The employee argued that police forces in other countries (e.g. the US, UK) allowed headscarves and turbans to be worn, and as a result of the Garda’s decision, he was unable, due to his religious beliefs and ethnicity, to continue his training and thereby become a member of the Garda Reserve. The Gardaí defended their stance, arguing that they had to maintain an impartial stance regarding religion and to move away from this stance would affect their longstanding tradition and image. Although the High Court agreed with the Gardai, many have been critical of the decision, pointing out that the Gardaí's uniform does not reflect a neutral religious stance, as the Gardaí badge is a symbol of Celtic Christianity and includes four circles, one on each corner resembling a cross. Any policy must be reasonable, proportionate and objectively justified. What is the reasoning behind the policy: is it image focused? Based on health and safety concerns? If it is simply due to feelings of awkwardness about the office then it is likely to be frowned upon on a legal basis. When introducing a policy, it is best practice to engage with employees in a collaborative consultation process before any such policy is introduced. Not only will this allow an employer to gauge potentially sensitive issues with the employee base, it will also foster a higher level of cooperation and understanding when the policy is introduced or updated. This article first appeared as part of Legal-Island’s employment law update service. Find out more: www.legal-island.ie