In the case of Achbita and another v. G4S Secure Solutions NV  CJEU C-157/15, the Advocate General has given her opinion on whether a private employer could prevent a female Muslim employee from wearing a headscarf at work.
Samira Achbita (Ms Achbita) worked for G4S Secure Solutions NV (G4S) as a receptionist. G4S operated a policy which prohibited employees from wearing any visible religious, political or philosophical symbols whilst at work. This policy was incorporated within their Code of Conduct. For the first three years of her employment, Ms Achbita only wore a headscarf outside of work hours, but she subsequently intended to also wear it at work. When she did so, Ms Achbita was dismissed for failing to follow G4S's dress code. Ms Achbita brought a claim for wrongful dismissal in Belgium, alleging direct discrimination.
The Belgian Labour Court dismissed Ms Achbita's claim and this decision was upheld on appeal. The Belgian Court of Cassation, which is currently considering Ms Achbita's further appeal, asked the European Court of Justice (ECJ) for a preliminary ruling on whether G4S's dress code policy was directly discriminatory under the relevant European Directive.
Although the question only referred to direct discrimination, the Advocate General suggested that the ECJ should consider both direct and indirect discrimination and any potential justifications available.
Advocate General's opinion
The Advocate General concluded that there was no direct discrimination, as Ms Achbita had not been treated less favourably. She reached this decision on the basis that G4S's policy was founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and, importantly, not on stereotypes or prejudices against one or more particular religions or against religious beliefs in general.
The Advocate General added that, if she was incorrect regarding direct discrimination, the ban on wearing a headscarf at work could be regarded as a "genuine determining occupational requirement" under article 4(1) of the Equal Treatment Directive (2000/78/EC). This was on the basis that G4S's objective was to enforce a legitimate policy of religious and ideological neutrality.
The Advocate General did indicate that the blanket ban imposed by G4S might constitute indirect discrimination. However, she also highlighted that indirect discrimination could be justified if the employer could show that the principle of proportionality had been observed.
The Advocate General acknowledged that the principle of proportionality is a delicate matter, for which national courts are granted a degree of discretion. It would therefore be for the Belgian Court of Cassation to reach its own view on whether G4S had struck a fair balance between the conflicting interests. When considering this issue, the Belgian Court of Cassation will likely take into account, amongst others, the following factors:
- the size and visibility of the religious symbol in relation to the employee's overall appearance;
- the nature of the employee's role and the context in which that activity must be performed within the relevant business;
- whether it is reasonable to expect the employee to exercise restraint in relation to the religious symbol in the workplace; and
- the national identity of the Member State concerned.
It is worth highlighting that the Advocate General's opinion is just that: an opinion. It is therefore not binding on the ECJ, which could reach a different conclusion. However, in our view, the opinion is surprising.
The Advocate General appears to focus heavily on the premise that the wearing of a headscarf is a voluntary practice associated with the employee's religious belief and that she could choose whether or not to observe this practice.
Ms Achbita had previously been willing to remove her headscarf whilst at work, which may have impacted this opinion. Would this case have been decided differently if it had related to a new employee who insisted on wearing a headscarf at all times from the outset?
The result is that religious discrimination could be set apart from other forms of discrimination in terms of the level of protection that employees are afforded. We cannot see that this is what was intended by the Directive and feel it could create considerable confusion for future cases.
The Advocate General also placed considerable importance on G4S's desire to protect its own brand image and that neutrality was essential to achieving this. However, this contradicts the conclusions reached by the Employment Appeal Tribunal (EAT) in Eweida v. British Airways Plc UKEAT/0123/08,where brand image was found not to be relevant in justifying an employee being prevented from manifesting their religious beliefs. In the UK, the Equality Act 2010 does not mirror the Directive exactly, as there is no "genuine and determining occupation requirement" test. Direct discrimination cannot be justified but this case may still be relevant in the context of indirect discrimination cases, where an employer may be able to show that there was an objective justification for such treatment.
Finally, this is first of two similar cases and the other, Bougnaoui v. Micropole Univers CaseC-188/15, involves a reference from France where an employee was prevented from wearing a headscarf whilst visiting a client. Please keep an eye on future blog posts for updates on this reference and the ECJ's decision.