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Briefing Note

Headscarf ban was not direct discrimination

This case has been widely, in our view, misreported by the media. Contrary to press reports it is not a green light to ban the wearing of religious symbols in the workplace.

Achbita v G4S Secure Solutions NV [ECJ] | 2017

The Facts

G4S provide reception services to various clients in Belguim. It was a unwritten rule at G4S that religious, political and philosophical symbols could not been worn at work to ensure the company’s neutrality. This was put in writing in June 2006.

Ms A was employed by G4S as a receptionist from February 2003. As a Muslim, Ms A wore a headscarf at home but not at work. In April 2006 Ms A informed G4S she intended to wear a headscarf at work. She was told she could not.  After a period of sickness, Ms A again informed her employer she would be wearing a headscarf but, as Ms A would not conform to the G4S policy, she was dismissed.

Ms A brought a claim of direct discrimination in the Belguim courts, who referred a preliminary question to the ECJ.  Paraphrasing: was it direct religious discrimination to prohibit a female Muslim wearing a headscarf at her workplace where the rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?

Direct discrimination occurs where one person is treated less favourably than another on the grounds of, in this particular case, religion.

The ECJ Decision

The ECJ concluded that the prohibition was not direct discrimination.  In reaching its decision, it emphasised that G4S’s ban applied to all visible religious and philosophical symbols without distinction. It was a neutral policy and there was no evidence that Ms A was treated any less favourably than any other person on grounds that she was Muslim.

The ECJ went onto comment (although it had not been asked to) that G4S’s policy could be indirect discrimination.  Indirect discrimination occurs where an apparently neutral provision, criterion or practice (known as a ‘PCP’) puts persons of, in this case, a particular religion at a particular disadvantage when compared with other persons, although there is no discrimination if the PCP is objectively justified (or a proportionate means of achieving a legitimate aim).  The ECJ concluded that G4S’s policy of political, philosophical or religious neutrality in customer-facing roles was a legitimate aim but did not look at whether it was justified.  This would involve considering all the reasons for the ban and whether the policy only applied to customer facing roles, which was not clear from the facts in the judgment.  It also noted that consideration would need to be given to whether Ms A could have been moved to a non-customer facing role.

Comment

The media headlines suggest employers can, with impunity, ban items like headscarves. That is simply incorrect.  Any such rule or policy is very likely to be indirectly discriminatory unless it can be objectively justified.  This will involve balancing a number of factors.

The team at Quantrills can help if you are considering introducing such a rule or policy or want to assess a rule or policy you already have in place.

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