The EU says dress codes banning the wearing of religious items may not be discriminatory
10 points to note from the recent case Achbita v G4S Secure Solutions NV
Employment policies which stop employees manifesting their religion or beliefs make for high profile and newsworthy cases. In the latest case, an Advocate General of the ECJ (European Court of Justice) recently provided a legal opinion on whether such a policy was discriminatory under EU law. The ECJ will soon be giving its binding decision, which rarely differs from the opinion of an Advocate General.
You may think EU Law and ECJ decisions aren’t relevant following the Brexit vote last week, but no laws have changed and until there is a definitive exit from the EU (if there is to be one), the case law of the ECJ still applies to the UK.
Ms Achbita was a receptionist employed by G4S, which provided (amongst other things) receptionist services to its commercial customers. She started work in 2003, when G4S had an “unwritten rule” that employees could not, in the workplace, wear any visible signs of their political, philosophical or religious beliefs (and/or give expression to any ritual arising from them). In 2006, this rule was incorporated in writing into G4S’s employee code of conduct, with the agreement of G4S’s works council.
Ms Achbita announced to her employer that she would come to work in a headscarf and when she did she was dismissed for breaching that rule. The Belgian court asked the ECJ to confirm the position under EU Law in relation to this rule – was it discriminatory on the grounds of religion or belief, contrary to EU Law?
The Advocate General’s answer was no, it was not directly discriminatory on the grounds of religion or belief. Furthermore, it was not indirectly discriminatory because the requirement was a genuine occupational requirement and the rule was a necessary means of achieving a legitimate aim.
10 Points to Note
- An employer, such as G4S, has discretion in the pursuit of its business and may legitimately decide on a policy of strict religious and ideological neutrality.
- In order to achieve that neutral image, an employer may demand of its employees that they present themselves in a correspondingly neutral way in the workplace.
- G4S’s policy applied to all visible religious symbols without distinction and affected a religious employee in exactly the same way that it affected, for example, a confirmed atheist who wears clothing with anti-religious slogans.
- It is “perfectly legitimate” for an employer to require its employees to meet the expectations of customers who wish to be served without discrimination, courteously and to a basic standard of politeness. G4S’s policy of neutrality was therefore in pursuit of a legitimate aim. This conclusion was specifically because of the types of services G4S provides to its clients.
- Other policies had to be considered – could the objective be achieved in a way that was more lenient than a ban?
- G4S could have had a uniform that included an optional headscarf, or moved employees such as Ms Achbita to back-office positions, or ensured they only served customers with no objection to receptionists with visible and conspicuous signs of religious belief.
- These options would undoubtedly be less intrusive, but they would be inappropriate for achieving G4S’s legitimate objective of religious and ideological neutrality.
- Unlike disability discrimination, there is no requirement to provide ‘reasonable accommodation’ to ensure equal treatment for someone with a particular religion or belief. Employers can seek individual solutions tailored to the circumstances, but a significant organisational burden should not be imposed.
- An occupational requirement may not be appropriate if it is not clearly and unambiguously recognisable to employees.
- Any rules such as this must not be contradictory and must be applied and enforced consistently in relation to all employees in order to be appropriate.
The ECJ’s decision will have an impact across the EU and therefore in the UK, while it remains in the EU. The points above are therefore important to use in an evaluation of your organisation’s policies.
Regular reviews of staff handbooks and contracts are a matter of good practice and this case should provide the impetus to look at policies now, before employees raise issues and potential claims.