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Religious dress on campus

Published: 06/04/2017

The view from ECU.

Briefing on recent European court judgments

In the world of higher and further education we spend a lot of time talking and writing about our problems. We consider the impact of our words on others, and we construct our messages carefully to navigate debate, disagreement, and discussion. We may have a range of labels, badges and ‘-isms’ to frame our identities.  Sometimes though it is the non-verbal expressions of our selves – the symbols and the acts – that can be most powerful, and yet most vulnerable.

For those who express their religion or belief (spiritual or philosophical) through certain items of clothing or jewellery, supposedly ‘neutral’ dress codes can have a significant effect on participation, progression and belonging in the workplace, and more widely, in our communities.

As employers, and as educators of future employers, higher education institutions should be mindful of the experiences of those who adopt religious dress whether this be a cross, turban, skullcap, hijab, or any other ‘manifestation’ of their religion (and not necessarily one that is mandated by the religion).

For many, their experiences related to religious dress are gendered as well as religious and cultural: we only have to look at the speed with which the media targeted a hijabi Muslim woman caught up in the Westminster attacks to get a glimpse into the extent of prejudice women wearing a headscarf can face.

Two recent rulings from the Court of Justice of the European Union (CJEU) specifically addressed the question of employers’ decisions around uniform and religious dress. Samira Achbita and Asma Bougnaoui both alleged religious discrimination from their employers, specially relating to their dismissal for wearing a headscarf in the course of their duties. The judgements in these cases have caused much consternation, with headlines speaking of businesses being given the right to ban their employees from wearing headscarves. The judgements are still being carefully scrutinised by academics and practitioners alike, but we’ve provided what we hope will be a useful summary below.

What do these two judgements mean?

We must be clear that there has been no substantive change in the law: provisions protecting employees from religious discrimination have not changed. These cases found that there was no direct discrimination in the employers’ uniform policies, but that there was indirect discrimination (where a seemingly neutral rule such as a uniform code might impact some groups more than others – such as Muslim women wearing a headscarf in this case).

Some forms of discrimination are permissible where there is a ‘legitimate’ aim and/or a ‘genuine occupational requirement’, but only if the action is proportional to that requirement:  in terms of religious dress, justifications are normally focused on issues of health and safety.  In other words, it’s a balancing act, and the concern is that this recent case law adjusted the scales somewhat in favour of the employers.

The Bougnaoui case in particular looked at whether the complaints made by Ms Bougnaoui’s clients relating to her headscarf could really mean that prohibitions on the headscarf were a genuine occupational requirement of her work, and the court disagreed. However, the Achbita case is perhaps the more concerning, looking more widely at a general rule of the employer (G4S in Belgium) prohibiting employees wearing ‘any visible signs of their political, philosophical or religious beliefs’ in the workplace. Again no direct discrimination was found, but in discussing indirect discrimination and the balancing act of legitimate aims and proportionality a more worrying ‘business’ case was considered:

“.. the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate[…]. An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business…is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers.”

[para 37- 38]

The ‘in principle’ here is both the cause of worry, and cause of reassurance. While for some this is seen as a missed opportunity to narrow down the potential ‘legitimate aims’ which might ‘justify’ discriminatory treatment, for others – including the government – the law’s focus on proportionality and context will in likelihood make any attempt by an employer to rely on such aims practically very difficult to persuade a domestic court. The government is however working with EHRC (who have already issued a statement) to update its guidance.

“it is the right of all women to choose how they dress, and we do not believe that the judgments change that. Exactly the same legal protections apply today as applied before the rulings.”

Government response

What can we do to support freedom of religious dress in our communities?

It is important for all staff to have a sense of belonging on campus, and this means being accepted as themselves without having to ‘hide’ their religious beliefs. As certain clothing and jewellery is an important part of the expression and identity of some religions and cultures, any restrictions imposed by the university or college must be considered extremely carefully.

Institutions should be mindful of the protections around religion and belief within the Equality Act 2010 and their specific duties within the Public Sector Equality Duty for each nation of the UK.

ECU advise:

  • When considering a dress or uniform code, ensure you conduct an equality impact analysis and consult with your community.
  • Where some restrictions might be needed for health or safety (for example) consider steps to mitigate the impact this might have on certain groups.
  • Be mindful of how certain combinations of characteristics such as religion and gender might mean greater impact on certain groups – for example some Sikh men or Muslim women.
  • Consider how the imagery of staff and students used in your community can convey inclusion of diverse cultural and religious backgrounds.

What are you doing to support expressions of religion and belief in your institution?

Contribute to ECU’s 2017 project on supporting religion and belief by submitting examples of your engagement with this area:

Jess Moody @ECUJessM
Senior Policy Adviser, ECU