human rights | Ariadne Associates

Today’s ruling by the Court of Justice of the European Union (CJEU) that employers can ban Muslim women from wearing headscarves has attracted a good deal of publicity and comment from both sides of the argument. But it’s important for small business owners to understand the implications of the decision before deciding whether or not they need to do anything at all about this ruling.

First – and probably the most important point – is that banning a Muslim woman from wearing a headscarf is not direct discrimination only if it is part of a policy that all employees are not allowed the “visible wearing of any political, philosophical or religious sign in the workplace”. In other words, such a ban must also prohibit, amongst other things

· Wearing of a cross by a Christian

· Wearing of a turban by a Sikh

· Wearing of a Kippah by a Jewish man

· Anyone wearing a t-shirt with a religious, atheist or philosophical message (such as this for example)

· Rastafarians having dreadlocks

I’m sure you can think of others (wearing a poppy in the lead up to Remembrance Day for example?).

But even if you want to introduce such a ban (and we’ll look at why in a minute) you need to beware that such a policy might be indirect discrimination – in other words a requirement which, although it appears to treat everyone equally, disproportionately affects one particular group. Indirect discrimination is permitted by an employer if it is ‘objectively justified by a legitimate aim”. In the cases before the CJEU, the court decided that a legitimate aim could be that a company wished to convey an image of political, religious or philosophical neutrality to its customers, but that the desire of acustomer not to be served by an employee wearing a religious symbol (in this case a headscarf) would not be a legitimate reason.

So, having considered all this, and the potential for a legal challenge if you do implement a ban, why would you want to do this anyway? How business critical is it that you convey an image of “neutrality” to your customers? Is it so important that you wish to try and dictate to your staff what they can and can’t wear? What happens if someone is wearing a headscarf as fashion accessory or for hairloss after chemotherapy, not for any religious reason? How do you distinguish? As we saw last year with the “High Heels” issue, imposing arbitrary and unjustifiable dress codes can lead to a wealth of damaging bad publicity for the companies involved.

And we haven’t even considered the issue of whether this ruling will be binding on the UK after we leave the EU (given that a claim now would probably take more than 2 years to reach the Supreme Court) – I’ll leave that one for legal bloggers and commentators.

As always, remember the two golden rules of Employment Law for small business

1. Don’t believe anything you read about Employment rules in the Daily Mail

2. Just because you can, doesn’t mean you should.

Note: Like everyone else commenting today, I’ve based this post not on a reading of the full legal judgment (which is not available at the time of writing) but on the CJEU press release, which can be found here. Should the full judgment contain anything different, I’ll update this post.

The heady combination of sex and employment law much beloved by the press came to the forefront in a recent case involving an NHS worker who claimed unfair dismissal after her bosses found out she appeared in pornographic movies. Although the judgment in the case is still awaited*, it does raise a lot of questions about how far an employer can go in regulating the behaviour outside work of employees.

The simple facts of the case are fairly straightforward. Ms Molloy was employed as a medical secretary to an NHS consultant. Although she would have access to a lot of patient information, she would rarely deal with or be seen by patients – it was purely an administrative role. There appears from the press reports to have been no issues with her work.

However, outside of work, she appeared in a number of pornographic films and apparently also advertised what are referred to variously as “kinky adult services”.

No-one in the Trust was apparently aware of this until it was brought to their attention by another employee (whom a number of press reports refer to as a “whistleblower” although it’s doubtful whether reporting on a colleague’s legal out of work activities would necessarily be covered by the whistleblowing protections).

Following this information, Ms Molloy was allegedly given a “resign or be dismissed” ultimatum.

So – were Ms Molloy’s activities outside work any business of her employer?

The Trust appears to have relied on two aspects – that she had breached their policy on second jobs, and that her behaviour had brought them into disrepute. I wrote about how to deal with employees who have more than one job here, and it’s difficult to see how having a non-health service job in her own time would cause a problem (especially since in the NHS many senior professionals have second jobs) . At worst, it might be a warning for failing to notify them.

So did her behaviour bring the NHS into disrepute? She wasn’t patient facing, and it appears that her activities had been going on for some time without attracting any notice (which given that online porn is easily available is quite surprising). Was the trust’s reputation damaged by being seen to employ her? Would the press have made anything more of the issue than they have done anyway, had they somehow got hold of the information sooner? Or would public confidence be damaged? It’s interesting that in an admittedly unscientific newspaper poll, an overwhelming majority felt she should not have been dismissed (a suspiciously convenient 69%!)

Of course, many people find pornography distasteful, immoral or demeaning to women. But is a personal moral opinion grounds to sack someone doing something that isn’t illegal? In employment terms, you’d really need to show that continuing to employ the person was causing significant damage to your business to justify dismissal – was it within the range of reasonable responses to the issue? It might well be a case of “Some other substantial reason” if this were the case.

*Update Sept 2016 – Ms Molloy’s claim was successful, primarily on the grounds that the Trust had failed to follow any real procedure, although the judge felt that the disrepute issue would have potentially been a fair reason had they dealt with matters correctly.

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What would you do if you found you employed a porn star?