Banning the wearing of headscarves in the workplace does not amount to direct discrimination, the European Court of Justice (ECJ) has ruled.
The case of Achbita v G4S Secure Solutions (C-157/15) arose in Belgium, where G4S had an unwritten policy banning the wearing of all visible signs of political, philosophical or religious beliefs. A Muslim receptionist said she wanted to start wearing a headscarf. G4S explained that this would contravene the company’s policy. The G4S works council approved an amendment to the workplace regulations, to put the prohibition in writing. The receptionist, Samira Achbita, was dismissed.
The ECJ held that the G4S ban did not amount to direct discrimination since the workplace policy applied to all religious symbols, so no one religion was treated less favourably than another.
It held that G4S’s “position of neutrality” in its contacts with customers was a legitimate aim as long as it applied only to customer-facing employees. It noted that it was “not…inconceivable” that the national court might conclude that the policy puts a particular religion or belief at a particular disadvantage. However, it said this difference of treatment would not amount to indirect discrimination if it was justified by a legitimate aim and the means of achieving that aim were appropriate and necessary.
In an adjoined case, Bougnaoui and ADDH (C-188/15), the ECJ ruled that, where there was no such workplace policy in place, it was unlawful for an employer to give in to a customer’s request not to be served by an employee in an Islamic headscarf. It held that the wishes of a customer was not a “genuine and determining occupational requirement”, which would have justified the discrimination.
Sarah Rushton, employment law partner at Moon Beever, said: “Under English employment law, dress codes and uniform policies can easily give rise to issues of indirect discrimination where the requirement to dress in a certain way has a disproportionate impact on a particular group of people.
“The issue is then whether the requirement can be objectively justified, balancing the interest of the employer against the impact on the employee. There is no defence of ‘objective justification’ to a claim of direct discrimination in English law.
“The ‘occupational requirement’ defence is even narrower in English law than it is under the European Directive, because it only applies in English law in the context of religious discrimination, where there is a requirement to be of a particular religion.”
