Prohibition of headscarves in the workplace

Is an employer permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace? Is it discriminatory to dismiss her if she refuses to remove the headscarf at work?

In the case of Achbita and anor v G4S the Court of Justice of the European Union (“CJEU”) has held that a company’s policy prohibiting any employees from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them, is not directly discriminatory on the ground of religion or belief.  However, it held that such a policy may give rise to indirect discrimination.

Facts
In addition to security services, GS4 provides reception services.  GS4 employees are not permitted to wear any religious, political or philosophical symbols while on duty. This prohibition was incorporated into the G4S employee code of conduct.

Ms Achbita, a Muslim, joined GS4 in 2003.  She wore a headscarf exclusively outside working hours for more than three years but in April 2006 she announced that she intended to wear a headscarf during working hours as well, for religious reasons. When she refused to remove the headscarf at work she was dismissed.

In April 2007 she brought a claim for wrongful dismissal and discrimination in Belgium.  The Belgian court made a referral to the ECJ to ask whether prohibiting a female Muslim employee from wearing a headscarf at the workplace constitutes direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs in the workplace.

Decision
The CJEU concluded that the fact a female Muslim employee is prohibited from wearing a headscarf at work does not constitute direct discrimination based on religion.  There was no evidence that Ms Achbita was treated differently compared to any other worker because the ban applied to all symbols of religious or political belief.  

The Court decided that the so-called neutrality rule could however constitute indirect discrimination.  This was because the rule could disadvantage employees of a particular religious group more than others. 

Importantly, an employer is able to defend a claim for indirect discrimination if the provision, criterion or practice is objectively and reasonably justified.  One of the aspects the employer has to show is that there is a legitimate aim in pursuing the policy in question.  In this case the CJEU judgement strongly indicates that the employer's right to conduct its business trumps the employee's right to manifest their religion.  In particular, the court held that "where the employer had a policy of upholding political, philosophical or religious neutrality in customer-facing roles, this must be considered a legitimate aim".

Any such policy must also be proportionate and the CJEU provided guidance as to which factors should be taken into account including the size and conspicuousness of the religious symbol, the nature of the employee’s activity, the context in which the employee has to perform that activity, and the national identity of the Member State concerned.  The Court also indicated that consideration ought to have been given to the question of whether Ms Achbita might have been moved to a non-customer-facing role before the decision was made to dismiss her and whether the rule should not apply to non-customer facing roles.

Ultimately it will be for the Belgian court to decide whether the policy amounted to indirect discrimination.

Comment
The fact that the CJEU seemed to accept that a policy of neutrality is, of itself, a legitimate aim is perhaps surprising.  That said the court was clear that, whilst such general policies are potentially permissible, they must not come from a place of prejudice against certain groups.  

This position was reinforced by another recent decision of the ECJ in Bougnaoui and anor v Micropole.  In that case it was held that, if there is no general rule (as was the case in G4S) and the employer dismisses an employee for wearing a headscarf following a customer objection the dismissal is directly discriminatory. 

This means employers should still take considerable care when deciding upon and implementing dress codes.  

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Kerry Garcia

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