The European Court of Justice (“ECJ”) handed down a joint judgment yesterday in relation to a Belgian and a French case involving Muslim employees being banned from wearing headscarves at work.
Ms Achbita was a receptionist employed by G4S. In April 2006, Ms Achbita informed her employer that she would be wearing an Islamic headscarf to work in accordance with her beliefs. This was contrary to a rule at G4S that prohibited all employees from wearing any symbols of their political, philosophical or religious beliefs in the workplace. This rule had been put in place by G4S as they aim to have religious and ideological neutrality and this is adopted in their contracts with clients. Ms Achbita was dismissed later that month as she continued to wear an Islamic headscarf at work.
The ECJ ruled yesterday that as G4S’ internal rule treated all employees in the same way, it was therefore not possible for it to be direct discrimination based on religion or belief.
The ECJ did, however, also note that such rules may amount to indirect discrimination if it were found that the rule was putting employees adhering to a particular religion at a disadvantage. But, such differences in treatment could not amount to indirect discrimination if it could be shown that the rule was objectively justified as a proportionate means of achieving a legitimate aim. Examples of a legitimate aim would be a neutrality policy (as was the case here) or for health and safety reasons.
The ECJ also considered a scenario where an employer did not have a generally applicable rule against wearing religious symbols.
Ms Bougnaoui was employed as a design engineer with Micropole and was dismissed in 2008 when she continued to wear an Islamic headscarf and veil. Her employer did not have a rule about wearing headscarves or other religious symbols. But when it received a complaint from a customer about Ms Bougnaoui’s headscarf, it asked her to stop wearing it.
The ECJ considered the argument that because the change to the dress code reflected the wishes of a customer, the employer had a defence to a claim of direct discrimination on the grounds that it was a “genuine occupational requirement” that Ms Bougnaoui should not wear her headscarf. This argument was rejected and it was held that there could be a claim for direct discrimination in this instance.
These rulings have been long awaited, particularly in light of earlier conflicting opinions from the Advocate-Generals on the topic. Whilst the outcome is likely to be of some relief to employers with similar dress codes, it should be borne in mind that any such policies will need to be considered proportionate and have a legitimate aim behind them to defeat any claims for indirect discrimination.
Achbita v G4S Secure Solutions and Bougnaoui v Micropole