The law surrounding dress codes and the wearing of religious clothing in the workplace has been in a constant state of flux.
The European Court of Justice (ECJ) in Achbita and another v G4S Secure Solutions NV addressed this issue and provided helpful guidance, ruling that it would not necessarily be directly discriminatory for a private employer to prohibit a Muslim employee from wearing a headscarf in the workplace.
Workplace Religious Dress Code
Background
Under the Equal Treatment Framework Directive, individuals must be treated equally in relation to employment and occupation. Where the difference in treatment is based on religion or religious belief this will be discriminatory, unless an employer can demonstrate that there is a legitimate objective for the difference in treatment and that the occupational requirement in place to achieve this objective is proportionate.
Facts of the case
Mrs Achbita started working as a receptionist for G4S, a Belgian security company, in 2003. In 2006, the company introduced a formal policy prohibiting employees from wearing any visible signs of political, philosophical or religious beliefs or from giving expression to any ritual arising from them.
Mrs Achbita announced that in the future she intended to wear a Muslim headscarf during working hours. She had previously only worn this outside of working hours. As a result of this, she was dismissed. The company argued that there was a clear policy prohibiting the wearing of such clothing and that Mrs Achbita was well aware of this company rule.
Mrs Achbita contended that her dismissal was directly discriminatory and the Belgian Supreme Court referred the matter to the ECJ.
Decision
Attorney General Kokott (AG) considered the facts and ruled that in this case the policy prohibiting the wearing of religious dress in the workplace was not directly discriminatory.
In reaching this decision, importance was placed on the fact that the prohibition in question stemmed from a general neutrality policy that affected all employees equally, as opposed to being based on stereotypes or prejudice against a particular religion or religious beliefs generally.
The dress code could just as easily affect a male employee who is an atheist and expresses his anti-religious stance in a visible manner and at most, the policy could be considered to be indirectly discriminatory on the basis that it may put certain individuals with particular beliefs or religions (i.e. female Muslim employees) at a particular disadvantage as compared to other employees.
The AG went further, holding that even if an argument for indirect discrimination was brought, the employer may be able to objectively justify this policy on the grounds that it is an occupational requirement, necessary in order to achieve the employer’s objective of religious and ideological neutrality.
The AG stated that the policy was a legitimate commercial choice, given the broad range of clients in the public and private sections to whom the company was providing services.
This would be subject to a proportionality assessment based on the size, conspicuousness and blatancy of the symbol, the nature and context of the employee’s activity and the jurisdiction in which the indirect discrimination claim was being heard.
Comment
The AG distinguished this case from the well-publicised Eweida v United Kingdom, where a similar neutrality policy banning the wearing of a religious cross outside a uniform was held to be discriminatory as it had not been applied consistently to individual employees.
It is a useful reminder to employers that they must not simply rely on the neutral wording of a policy, they must also ensure that the policy is applied equally to all employees in practice.
The decision has received a lot of attention from academics and the media. It has been criticised for failing to take into account the fact that certain religions place more emphasis than others on the practice and manifestation of the religion and so are less able to cope with an insistence on a shared public standard of dress or behaviour. A devout Muslim woman cannot simply choose to remove her headscarf on entering the workplace, if she believes that she is obliged to wear it.
It is also worth noting that the AG made specific reference to the fact that the jurisdiction in which the indirect discrimination claim is being heard will affect the decision made. This may mean that in European countries where secularism is a core constitutional concept, the wearing of visible religious symbols may be subject to greater restriction. This suggests that the principle of equal treatment may not be capable of being consistently applied across the EU regarding religious discrimination.
The case will now be considered by a panel of ECJ judges, with a final decision being expected within two to four months. The judges are not obliged to follow the Advocate General’s opinion, but in practice it is unusual for a differing conclusion to be reached.
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