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The Latest Brief Week Ending 17 June 2016

Discrimination and dress codes

The Advocate General has given an opinion that a Belgian company's dress code, used to prevent a Muslim employee from wearing an Islamic headscarf, did not amount to direct discrimination.

The employer, a security company, had the objective of religious and ideological neutrality, and banned employees from wearing any visible religious, political or philosophical symbols in the workplace. The Advocate General considered that this was not direct discrimination on the basis that the ban affected all employees equally, and was not prejudiced against one or more religions, or against religious beliefs in general.

The Advocate General considered that even if it did amount to direct discrimination, the headscarf ban could be regarded as a genuine occupational requirement under the Equal Treatment Framework Directive, bearing in mind the employer's policy objective of neutrality. The adoption of such a policy was, in the opinion of the Advocate General, a legitimate commercial choice, and the imposition of the dress code was both appropriate and necessary for achieving this objective.

It was for the national court to decide whether or not the policy adopted was in fact proportionate. This is an opinion only and is not binding on the Court of Justice, but such opinions are usually very persuasive. It will be interesting to see whether the Court of Justice agrees with this view.

No southerners please..

The BBC has been accused of discrimination this week after reportedly advertising for a news reporter for the One Show required to be both northern and from an ethnically diverse background.

A memo sent within the organisation allegedly stated that the One Show is looking for a male reporter, over 30, from an ethnically diverse background and with a regional accent, preferably Scouse or Mancunian.

The BBC has stated that it uses dozens of freelance reporters on the show every year, and that it wants its TV presenters to reflect the ethnic and regional make up of the UK. However, UK law does not currently permit positive discrimination. Therefore the BBC's actions in giving preference to candidates from non-white backgrounds are likely to constitute discrimination unless the BBC can show that there is a ‘genuine occupational requirement' for their reporters to come from a certain ethnic background.

Employee prosecuted for unlawfully obtaining client data

The Information Commissioner has prosecuted an employee who transferred information about his employer's clients before moving to a new job. The employee sent details of almost 1,000 clients to his personal email address, and then left his employment to start a new role at a rival company. The email contained commercially sensitive information, including personal data in the form of contact details and the purchase history of customers.

The employee was found guilty under the Data Protection Act, and was fined £300 and ordered to pay around £400 in costs.

Prosecution by the Information Commissioner can take place alongside any action that employers may seek to take against their employees through reliance on restrictive covenants or common law rights (such as confidentiality). It is not clear whether or not the employee in this particular case had clauses in his contract preventing him from poaching customers or making use of company confidential information. However, in light of the fairly minimal financial sanctions imposed by the Information Commissioner, it is a further reminder of the importance of ensuring that restrictive covenants are included in contracts of employment, to ensure that the employer has the ability to protect their business if needed.