In a somewhat surprising decision, given the views expressed in some other recent cases, the Court of Justice of the European Union (CJEU) has decided that a ban on wearing headscarves at work does not (necessarily) constitute direct discrimination with reference to religion or belief. In Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions the European Court was asked to consider a case which was referred from the Hof can Cassatie (Court of Cassation) in Belgium, where the respondent, G4S, operated from 2006 a policy of neutrality which prohibited the visible wearing of any political, philosophical or religious signs.
Samira Achbita, a Muslim, was employed as a receptionist with G4S in 2003. In 2006 she told her employer that she wanted to start wearing an Islamic headscarf during working hours. After a period of absence due to illness she notified her employer on 12 May 2006 that she was returning to work on 15 May and would be wearing the headscarf. On 29 May the G4S works council approved an amendment to workplace regulations which provided that, with effect from 13 June 2006 “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”. On 12 June Ms Achbita was dismissed because she refused to accept the new policy.
The CJEU noted that G4S’s rule covered any manifestation of political, philosophical and religious beliefs without distinction. The rule was not applied to Ms Achbita in a way which was different from the way in which it would be applied to any other employees. Consequently, there was no direct discrimination.
However, such a prohibition could constitute indirect discrimination if the apparently neutral obligation in fact resulted in people adhering to a particular religion or belief being put at a particular disadvantage. Even if that was the case there could nonetheless be a legitimate aim such as the pursuit of a policy, in relation to customers, of political, philosophical and religious neutrality, provided that the means of achieving that aim were appropriate and necessary. In that case the policy might be maintained, for example, by allowing Ms Achbita to wear hear headscarf at work, but not in a role which involved any visual contact with customers, as an alternative to dismissal. The matter was referred back to the Belgian court for further consideration accordingly.
Also reported at the same time was the case of Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole Univers. In this case, prior to being recruited by Micropole, Asma Bougnaoui was told that wearing her headscarf might pose a problem if she was in contact with customers of the company. Initially Ms Bougnaoui wore a bandana during her internship. Thereafter she wore a headscarf. A customer complained and, relying on the principle of neutrality, the employer asked her to stop wearing the headscarf. She objected and was dismissed. She brought her claim in the Cour de cassation in France. On referral to the CJEU the question was whether the wishes of a customer not to have services provided by someone wearing a headscarf amounted to a “genuine and determining occupational requirement” with reference to the relevant EC Directive.
The court held that there should first be consideration of the conditions set out in the G4S judgment: “whether the difference of treatment, arising from an apparently neutral internal rule that is likely to result, in fact, in certain persons being put at a particular disadvantage, is objectively justified by the pursuit of a policy of neutrality, and whether it is appropriate and necessary”.
If the dismissal was not based on such an internal rule then the next question is whether the customer’s request for the services to be provided by someone not wearing a headscarf could be treated as a “genuine and determining occupational requirement”, also constituting a legitimate objective and a proportionate requirement.
Unsurprisingly the Court held that taking into account the customer’s wishes in this context could not be considered a genuine and determining occupational requirement within the meaning of the Directive