Religious dress in the workplace – ban on headscarves ruled lawful

Policies on clothes and the wearing of religious items is a contentious area. This is evident in the Eweida v British Airways [2013] case, where an employee initially failed in her claim to be allowed to visibly wear a white gold cross at work.

In a new case in this area, Achbita v G4S Secure Solutions [2016], the Court of Justice of the European Union (CJEU) ruled that a Muslim employee was not discriminated against when G4S in Belgium prohibited all employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace, which prevented Achbita from wearing her headscarf in the workplace.

The ban was in place at the time the Claimant was recruited as a receptionist for G4S. After 3 years of employment, she informed them of her intention to wear her headscarf at work – contrary to the position of neutrality G4S adopted in its contracts with its customers. She was later dismissed because of her continuing insistence on wearing her Islamic headscarf at work. She challenged the dismissal in the Belgian Courts.

The Belgian Court queried the interpretation of the EU Directive 2000/78/EC on equal treatment in employment and occupation. The Court asked the CJEU to decide whether the prohibition constitutes direct discrimination.

The Court of Justice ruled the blanket ban treats all employees in the same way – the internal rule was applied in the same way to the Claimant as it was to her colleagues. Therefore, it did not introduce a difference of treatment directly based on religion or belief and therefore there was no direct discrimination.

The Court was not asked to consider whether the policy was indirectly discriminatory, however it commented that an internal company rule could be discriminatory if it introduced “a difference of treatment that is indirectly based on religion or belief”, putting people who adhere “to a particular religion or belief… at a particular disadvantage”.

Such a rule could be “objectively justified by a legitimate aim… provided that the means of achieving that aim are appropriate and necessary”. The CJEU said the image of neutrality is a legitimate aim, if applied only to customer facing employees. The ban is appropriate, provided that the policy is proportionately and systematically applied.

The Court of Justice has left it to the Belgian Court to check the conditions of the ban and whether it would have been possible for the Claimant to have been redeployed to a non-customer facing role, as an alternative to dismissal.

If you would like further information or advice on the matters highlighted in this article, please contact James Simpson on jfs@blasermills.co.uk or Jasmin Dhillon on jad@blasermills.co.uk.