In the Belgian case of Achbita and anor v G4S Secure Solutions, The Court of Justice of the European Union (The ECJ) has held that an employer’s internal rule which prohibits the wearing of any visible political, philosophical or religious belief, does not constitute direct discrimination.
Achbita, a Muslim, was employed by G4S as a receptionist. G4S operates an internal rule of “neutrality” that prohibits employees from wearing visible signs of political, philosophical or religious beliefs in the workplace. In June 2006, Achbita was dismissed because of her continuing insistence on wearing the Islamic headscarf at work.
The ECJ found that G4S’s internal rule of “neutrality” did not present a difference of treatment that was directly based on religion or belief. G4S’s policy prohibited wearing all visible religious signs without distinction, so it was not treating one religion less favourably than another and therefore it did not amount to direct discrimination on grounds of their religion.
By contrast, The ECJ noted that such a prohibition may constitute indirect discrimination if it is established that the seemingly neutral rule results in persons adhering to a religion or belief being put at a particular disadvantage and, if the prohibition cannot be objectively justified by a legitimate aim. The ECJ provided guidance on how the Belgian national court should approach this issue. It stated that an employer’s desire to project an image of neutrality towards its customers would be considered a legitimate aim, and that the policy of neutrality should be considered appropriate provided it was genuinely pursued in a consistent and systematic manner. If the prohibition only covered customer-facing employees, then it could be considered strictly necessary. However, The ECJ advised that the national court should ascertain whether G4S could have offered Ms Achbita an alternative non-customer facing role, instead of dismissing her. If it was possible, then the dismissal could amount to indirect discrimination.
In the separate French case of Bougnaoui and anor v Micropole Univers, The ECJ held that if there is no general policy of “neutrality” and the employer relies on a customer’s unwillingness to being served by an employee wearing an Islamic headscarf as a reason to dismiss that employee, such treatment is discriminatory and cannot be defended on the basis of a ‘genuine and determining occupational requirement’ under Article 4 of the EU Equal Treatment Framework Directive (No.2000/78). The ECJ stated that it is only in very limited circumstances that a characteristic related, in particular, to religion may constitute a genuine and determining occupational requirement.
Please note that neither of the above decisions are binding in English law as this would have to be decided by our National Courts. However, the cases provide some useful guidance to employers who apply a dress-code in the work-place.
Please note that this information is provided for general knowledge only and therefore specific advice should be sought for individual cases.
For further information, please contact Sikin Andela