In Achbita and another v G4S Secure Solutions NV (Case C-157/15), the ECJ ruled that a Belgian company’s policy of banning employees from wearing any visible religious or political symbols at work, which was used to prevent a Muslim employee from wearing an Islamic headscarf, did not amount to direct discrimination as the prohibition applied to all employees equally.
Although the ECJ was not asked to look at the question of indirect discrimination, the judges noted that such a dress code was capable of constituting indirect discrimination. They said that it was legitimate for a company to want to uphold political, philosophical or religious neutrality in customerfacing roles but it would be for individual states to determine whether the code was appropriate or necessary.
On the same day, the ECJ gave a separate judgment in another case concerning a headscarf ban. In Bougnaoui and another v Micropole SA (Case C-188/15), the ECJ held that the ban constituted direct discrimination because it was imposed by her employer in response to a customer’s request rather than being based on an employer’s policy of neutrality. The idea of “a genuine and determining occupational requirement” refers to one that is objectively justified by the nature of the job or by context in which it is carried out, and cannot include subjective considerations such as customer preference.
What Should Employers Do Next?
Employers should ensure any dress code applies to all staff equally and refrain from knee jerk reactions to customer instructions.