Labour & European Law Review Weekly Issue 519 10 May 2017
This week we look at religious discrimination in two cases considered recently by the Court of Justice of the European Union (CJEU). Both involved Muslim women who wished to wear a hijab to work, and in both cases, they were not allowed to do so by their employers and both were dismissed. Below are the facts in the case of Achbita v G4S Secure Solutions NV
The European directive on equal treatment states that it is directly discriminatory to treat someone less favourably than someone else in a comparable situation. In Achbita v G4S Secure Solutions NV, the CJEU has held that it is not directly discriminatory to ban an employee from wearing an Islamic headscarf at work.
When Ms Achbita started working as a receptionist for G4S in 2003, the company operated an unwritten rule that workers could not wear visible signs of their political, philosophical or religious beliefs. On 12 May 2006, after a period of sickness Ms Achbita informed her line managers that when she returned to work in a few days’ time, she would be wearing an Islamic headscarf, covering only her head, although she had earlier been told that this was contrary to company policy.
On 29 May 2006, the G4S works council approved an amendment to the workplace regulations which stated that “employees are prohibited, in the workplace, 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 refused to stop wearing her headscarf at work. She brought claims of direct and indirect discrimination, among other things.
Decisions of lower courts
Her claims were dismissed by the Belgian Labour Court and subsequently the Higher Labour Court on the ground that the blanket ban on wearing visible signs of political, philosophical or religious beliefs in the workplace did not give rise to direct discrimination, and there was no evidence of indirect discrimination of her individual freedom of religion.
Ms Achbita appealed to the Court of Cassation which stayed the proceedings and asked the CJEU to decide whether prohibiting someone from wearing a headscarf at work constituted direct discrimination if the rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs.
Decision of CJEU
The CJEU held that as the rule introduced by G4S banning all visible signs of religious belief was applied to all employees, Ms Achbita could not be said to have been treated differently based on her religion or belief within the meaning of the EU directive on equal treatment. Therefore there could not be any direct discrimination.
It added, however, that, if it could be established that the apparently neutral obligation not to wear visible signs of political, philosophical and religious beliefs meant that people who adhered to a particular religion or belief were put at a particular disadvantage, then it might constitute indirect discrimination. It would then be up to the company to show that it had a legitimate aim for introducing the rule and that the means of achieving it were appropriate and necessary
Although that was a question for the national court to decide, the CJEU suggested that it was legitimate for employers to insist that their workers must project an image of neutrality towards their customers, particularly if those workers were in customer-facing roles. As long as the ban was applied consistently and systematically, there was no reason why employers should not use it to ensure a policy of neutrality. If the ban only covered G4S workers who interacted with customers, then it must be considered to be strictly necessary to achieve the aim pursued.
Finally, it suggested the national court should also ascertain whether it would have been possible for G4S to offer Ms Achbita a post that did not involve any interaction with customers, as opposed to dismissing her.