The Court of Justice of the European Union (CJEU) has decided in Achbita v G4S Secure Solutions that it is not directly discriminatory to ban an employee from wearing an Islamic headscarf at work.

Ms Achbita, who started working as a receptionist for G4S in 2003, told her employer in April 2006 that she intended to wear a headscarf at work. However, as this contravened the company’s unwritten policy of not allowing anyone to wear visible signs of their political, philosophical or religious beliefs at work, she was told that it would not be allowed.

In May 2006, the workplace regulations were amended so that employees were prohibited from “wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”. Ms Achbita was dismissed on 12 June 2006 because she continued to wear the Islamic headscarf at work.

The CJEU held that as the rule banning visible signs of religious belief was applied equally to all employees in the same way, Ms Achbita had not been treated differently based on her religion or belief within the meaning of the EU directive on equal treatment in employment and occupation.

However, the ban might constitute indirect discrimination if Ms Achbita could establish that the apparently neutral obligation not to wear visible signs of religious belief meant that she was put at a particular disadvantage. It was then up to the company to show that it had a legitimate aim, such as having a policy of political, philosophical and religious neutrality, as long as the means of achieving that aim were appropriate and necessary.

Although it was up to the national court to decide whether the means were appropriate or necessary, the CJEU said it had to ascertain whether G4S had, prior to Ms Achbita’s dismissal, established a general and undifferentiated policy of neutrality which it had consistently and systematically applied.

Gerard Airey, of Thompson Solicitors, added “This is a very interesting case and if there is a blanket policy prohibiting visible signs of religious belief, then it would appear it will be difficult to pursue a direct discrimination claim.

However, it appears open to pursue a claim for indirect discrimination and it is important to test whether the employer’s policy is a proportionate means of achieving a legitimate aim, which will turn on the facts of each individual case.”

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