Last month, the Advocate General in the European Court of Justice (ECJ) gave an opinion in the case of Achbita and another v G4S Secure Solutions NV, which HR practitioners should be aware of, writes Amy Cunningham of Cunningham Legal.

In this case, a Muslim employee was dismissed by her Belgian employer for wearing an Islamic headscarf. She brought a claim and a question was referred by the court to the ECJ, namely whether it is direct or indirect discrimination under the EU Equal Treatment Framework Directive for a private employer to ban a Muslim employee from wearing a headscarf in the workplace.

Facts

G4S is a company that provides security and reception services to customers in both the public and private sector. In its employee code of conduct, employees are told that they “are not permitted to wear any religious, political or philosophical symbols while on duty”. The claimant in this case was a Muslim woman who had been employed as a receptionist for three years by G4S in Belgium and who, three years into her employment, began wearing a headscarf at work. On 12 June 2006, she was dismissed.

As a result, she brought a claim of wrongful dismissal and discrimination. The Belgian court dismissed her complaint, ruling that there was no direct or indirect discrimination. The claimant’s initial appeal was rejected but, following a further appeal, the Belgian court referred a preliminary question to the ECJ.

The question was whether a prohibition on female Muslim employees wearing a headscarf at work constituted direct discrimination contrary to the directive.

Decision

Advocate General Kokott gave the opinion that this private company’s ban on employees wearing religious, political or philosophical symbols while on duty, which led to the dismissal of the claimant for wearing an Islamic headscarf, did not amount to direct discrimination.

It was a policy that applied to all employees equally and was not based on stereotypes or prejudice against one or more religions or religious beliefs in general.

The Advocate General went on to give the view that, even if it were direct discrimination, the ban could be justified under the “genuine and determining occupational requirement” exemption in Article 4(1) of the Directive, given the employer’s strict policy of religious and ideological neutrality.

The Advocate General did recognise that the threshold for justifying differences of treatment based on religion is high, and that cost alone will not be enough. One factor the Advocate General took into account was an employer’s freedom to run a business, which she said should include the right to impose a dress code if necessary. In this case, the Advocate General thought it was critical given the wide range of customers (from both the public and private sectors) that G4S served.

For that reason, the policy pursued a legitimate aim and was appropriate and necessary, since other alternative (and more lenient) ways of achieving the same objective could not be found.

Impact

This opinion is surprising, and appears to be more in favour of employers than previous decisions on this sensitive issue.

Although the Advocate General’s opinion is not binding on the ECJ or national courts or tribunals, such opinions are often influential and could, if followed by the ECJ in other cases (of which at least one is due to be heard imminently), arguably put religious discrimination in an inferior category from discrimination on other protected grounds.

The opinion portrays the wearing of a headscarf as an option, which for many Muslims it is not and, therefore, the decision is likely to be criticised.

The Advocate General distinguished this case from the Eweida v British Airways case, apparently due to G4S’s systematic and universal application of the dress code, which was necessary to implement its policy of neutrality. What may also have been relevant in this case, is the fact that Ms Achbita was prepared to remove her scarf while at work for three years.

Another case relating to dismissal for wearing a headscarf at work is due to be heard imminently. HR practitioners should wait for this decision for further guidance and should then review any dress code policies as necessary.

Last reviewed 21 July 2016