Does the banning of headscarves in the workplace constitute discrimination? No, at least not direct discrimination, held the European Court of Justice (ECJ) in Achbita v G4S Secure Solutions.
Legal Background
The Equality Act 2010 (the Act) prohibits direct discrimination, indirect discrimination and harassment in the workplace in respect of religion, religious belief and philosophical belief. It also prohibits victimisation against employees who have brought a claim under the Act.
Facts of the Case
Ms Achbita worked as a receptionist for G4S, a Belgian security company, from 2003 until her dismissal in 2016.
In 2006, G4S introduced a policy of ‘neutrality’ whereby employees were banned from wearing any political, religious or similar signs. When Ms Achbita announced that she wished to start wearing a headscarf during working hours, she was told this was prohibited and was later dismissed.
Following her dismissal, Ms Achbita brought a discrimination claim against G4S.
Decision
The ECJ ruled that G4S’s policy did not amount to direct discrimination on grounds of religion on the basis that it prohibited all religious signs, and so was not treating one religion less favourably than another, and applied to all employees in customer facing roles.
The ECJ was not asked to consider whether such policy was indirectly discriminatory, however it did comment that the neutrality policy introduced a difference in treatment which was indirectly based on religion, as Muslims are placed at a particular disadvantage. Nevertheless, the ECJ held that an employer’s desire to protect an image of neutrality may be a legitimate aim capable of justifying indirect discrimination provided it applies only to customer-facing employees. The ECJ did not comment on whether it would have been appropriate to re-deploy Ms Achbita into a non-customer facing role, as opposed to dismissing her.
Comment
The outcome of this case and the jointly heard case of Bougnaoui v Micropole have been long awaited and eagerly anticipated, as the preliminary opinions of the Advocate Generals gave conflicting views on whether such policies would constitute direct discrimination.
The ECJ’s decision serves as a relief to employers who implement dress codes with restrictions on wearing religious dress or symbols. However, those employers must still exercise a degree of caution when implementing such policies though, and ensure that any restrictions are proportionate and have a legitimate aim behind them.
The issue of how far the law should go to protect people from religious discrimination continues to ignite controversy and the decision above has been met with much criticism from academics and the general public. A recent report produced by the Equality and Human Rights Commission has explored this issue, and suggests that there may be a case for introducing a duty of ‘reasonable accommodation’ for employees who wish to manifest their religion or belief in the workplace. The report examines the systems in place in the US and Canada, where employers are under a duty to accommodate employees’ religious practices unless to do so would cause the employer undue hardship.
This area of law is particularly complex, leaving employers and employees uncertain about their rights and obligations. Watch this space for further reform…
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