In Achbita and Another v G4S Secure Solutions NV (Case C-157/15), the Advocate General has recently given an opinion that a private Belgium company's ban on employees wearing any religious, political or philosophical symbols whilst on duty did not amount to direct discrimination.
Facts of the case
G4S Secure Solutions NV ('G4S') provide security and guarding services and reception services to a broad range of customers from both public and private sectors. Ms Achbita commenced employment with G4S in Belgium as a receptionist on 12 February 2003. At that time G4S had an unwritten company rule that employees were not permitted to wear any religious, political or philosophical symbols whilst on duty. Ms Achbita was a Muslim when she joined G4S and she wore a headscarf but only outside of working hours and not whilst she was on duty. For three years Ms Achbita worked as a receptionist without wearing an Islamic headscarf at work.
In April 2006, Ms Achbita announced that for religious reasons she intended to wear a headscarf whilst on duty as well as outside of working hours. G4S pointed out that was at odds with the religious and ideological neutrality sought under the unwritten company rule. Ms Achbita insisted on being allowed to wear a headscarf at work.
With the approval of the G4S works council, with effect from 13 June 2006, it was incorporated into the G4S Employee Code of Conduct that 'employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them'. The policy of neutrality was crucial to G4S because of the variety of their customers and because of the special nature of their work characterised by constant face to face contact with external individuals.
Ms Achbita was dismissed on 12 June 2006 because of her firm intention as a Muslim woman to wear the Islamic headscarf.
Belgium Labour Court
She brought an action for damages for wrongful dismissal and/or discrimination against G4S. The Belgium Labour Court held that there had been no direct or indirect discrimination and that decision was upheld on appeal.
The proceedings were stayed by the Belgium Supreme Court during the course of a further appeal and a preliminary question was referred to the European Court of Justice asking whether a prohibition on female Muslim employees wearing a headscarf whilst at work constituted direct discrimination contrary to the Framework Directive where G4S's policy prohibited all employees from wearing visible signs of their political, philosophical or religious beliefs whilst at work.
Advocate General Kokott
Advocate General Kokott gave the opinion that G4S's ban on employees wearing religious symbols at work could not be classified at direct discrimination based on religion. Direct discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation on account of religion (Article 2(2) of the Framework Directive). G4S's ban applied to all religious symbols and extended to political and philosophical symbols. The only difference in treatment was between employees who wished to actively express a particular belief and those who did not. This did not constitute less favourable treatment that was directly and specifically linked to religion.
The Advocate General also went on to give the view that even if the ban on wearing religious symbols did amount to direct discrimination then it could be justified as a genuine and determining occupational requirement.
The ban may constitute indirect discrimination based on religion under Article 2(2)(b) of the Directive but that may be justified in order to enforce a policy of religious and ideological neutrality pursued by G4S insofar as the principle or proportionality is observed. The following factors must be taken into account; the size and conspicuousness of the religious symbol, the nature of the employee's activity, the context in which she has to perform that activity and the national identity of the Member State concerned.
This is only an Advocate General's opinion which is not binding on the European Court of Justice, national courts or tribunals. The activities carried out by G4S were relevant to the decision in this case and an employer not involved in providing services to the public might find it more difficult to justify a ban on religious symbols.