The European Court of Justice (ECJ) recently heard the case of Achbita v G4S Secure Solutions, a Belgian case concerning a Muslim woman who was dismissed for refusing to remove her headscarf at work. She claimed unfair dismissal and discrimination on the grounds of religion or belief.
This is the first such case of religious discrimination which has reached the ECJ and has been widely reported due to the sensitive and topical issues raised. Last week the Advocate General gave her opinion which, while not the decision of the court, may give an indication of how the court may find.
The ECJ were asked to consider whether requiring Mrs Achbita not to wear a headscarf as part of a ban on all religious clothing was directly discriminatory. G4S had a policy that no employee should wear any clothing or symbol relating to a religious, political or philosophical belief. They therefore argued that there was no discrimination as no employee of any religion was allowed to wear clothing symbolic of religious belief, or any political or philosophical belief, so that an Atheist or avid supporter of a particular political party, could not wear a t-shirt with any slogan or image to this effect. Mrs Achbita had not worn a headscarf for the first three years of her employment, but did so outside of work. She then began wearing a hijab to work (which covers the head but not the face.) When she refused to remove it in accordance with G4S policy, she was dismissed.
The Advocate General gave the opinion that such a requirement is not direct discrimination provided that it is part of a ban on all religious, political or philosophical symbols and not based on stereotypes or prejudices against or directed towards a particular religion. The policy of G4S applied equally to all employees and therefore Mrs Achbita was not treated less favourably than any other employee.
However, the Advocate General considered that such a policy could amount to indirect discrimination as it may disproportionately affect people of certain faiths whose religious practices are manifested more particularly through a form of dress or symbol. Such discrimination may be justified on the basis that the employer’s policy imposes a genuine and determining occupational requirement and in imposing this, they are pursuing a legitimate objective and the policy is a necessary and proportionate means of doing so.
The Advocate General concluded that in this case it was a genuine and determining occupational requirement to require employees to comply with a particular dress code. She was also of the opinion that upholding its brand image of having no association to any religion or belief was a legitimate objective for G4S to pursue. Having considered other possible measures, she concluded that the ban was necessary and proportionate in enforcing the occupational requirement of neutrality, which would be undermined if it did not apply equally to everyone. The grounds on which she comes to this conclusion are somewhat confusing, as she notes that the policy of neutrality was essential given the “special nature of the work which G4S employees do in providing those services, which is characterised by constant face-to-face contact with external individuals and has a defining impact not only on the image of G4S itself but also and primarily on the public image of its customers.” This could be argued of many businesses and it is not clear what in particular makes G4S different.
It remains to be seen if the ECJ will follow the opinion of the Advocate General. If it does, it may remain dependent on the particular circumstances and the terms of an employer’s policy in any given case as to whether or not such bans on religious clothing will be acceptable and (if the ECJ follows the Advocate General’s opinion, it should not be seen as giving employers free reign to impose a similar rule or policy without consequence. A good warning note of this point can be seen from the fact the opinion in this case differs from the decision of the European Court of Human Rights in the case of Eweida v British Airways – the heavily publicised case of an air stewardess who was asked not to wear a crucifix at work. BA had a policy of neutrality with exceptions for certain items of religious clothing which were compulsory, which was held to be indirectly discriminatory. It is perhaps on this basis that the Advocate General considers the case of Mrs Achbita to be different as the ban applied to everybody with no exceptions. Indeed, Mrs Achbita had worked for 3 years without wearing a hijab, before deciding that she wanted to wear it in the workplace. The fact that she didn’t always do so may be a factor in the opinion.
It is also worth noting that the ECJ is due to give a decision in a similar case referred to it by France which was heard on the same day. In that case, an employee wearing a hijab was asked to remove it when visiting a client, after the client’s staff had complained about her wearing it on a previous occasion. She was dismissed when she refused to do so. This case is slightly different, given the request not to wear the hijab was directed at the employee specifically and not based on a company-wide policy designed to ensure religious and philosophical neutrality across all employees. These decisions are important in order to clarify the extent to which an employer is permitted to limit the religious expression of employees, and the extent to which they are expected to accommodate it. It will therefore be interesting to see what conclusion the ECJ comes to in both cases.
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