Case update (2): Religious discrimination – dress code

case updates - small person sitting on large briefcaseSummary: Can employers prevent female Muslim employees wearing a headscarf at work?

Yes, if the prohibition stems from a general neutrality policy, says Advocate General Kokott, in Achbita and another v G4S Secure Solutions NV, available here.

Facts:  The employee, Ms Achbita, a Muslim, was employed by G4S in 2003 as a receptionist working in Belgium. For the first three years of her employment, Ms Achbita wore a headscarf only outside of working hours and not whilst she was on duty.  However, in April 2006, Ms Achbita announced that for religious reasons she intended to wear a headscarf whilst on duty as well as outside of working hours. G4S pointed out that was at odds with the religious and ideological neutrality sought under an unwritten company policy. This policy of neutrality was crucial to G4S because of the variety of their customers and because of the special nature of their work characterised by constant face to face contact with external individuals.

With effect from 13 June 2006, it was incorporated into the G4S Employee Code of Conduct that ’employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them’.

Ms Achitba continued to wear her headscarf to work and was dismissed on 12 June 2006 because of her firm intention as a Muslim woman to wear the Islamic headscarf.

Ms Achtiba brought an action for damages for wrongful dismissal and/or discrimination against G4S. The Belgium Labour Court held that there had been no direct or indirect discrimination and that decision was upheld on appeal. During the course of a further appeal, the Belgian Supreme Court stayed the proceedings and referred a preliminary question to the Court of Justice of the European Union (CJEU, formally known as the ECJ), asking whether the headscarf ban amounted to direct discrimination under the Directive, where the dress code prohibited all employees from wearing outward signs of political, philosophical and religious beliefs at work.

Advocate General Kokott gave her Opinion that the dress code which included the headscarf ban did not amount to direct discrimination based on religion or belief. G4S’s ban was a blanket ban, which applied to all religions equally and had been implemented consistently. There was also an element of neutrality because the rule applied to political and philosophical beliefs, not just religious ones.  The only difference in treatment was between employees who wished to actively express a particular belief and those who did not. This did not constitute less favourable treatment that was directly and specifically linked to religion.

In terms of indirect discrimination, such a rule was capable of justification in that G4S wanted to create an image of religious and ideological neutrality.

Implications:   This is the first case of religious discrimination under the Directive which has reached the CJEU. Therefore, although Advocate General Kokott’s opinion is not binding on the CJEU and national courts, it is of interest in this respect and, in fact, such opinions often influence CJEU judgments.

It is a surprising decision and there will almost certainly be heated opposition to it.   In particular Advocate General Kokott distinguishes between an individual’s physical characteristics, including gender, ethnic origin or age, and behaviour that the individual may exhibit, such as what they wear, stemming from their convictions. Many employees will, of course, refer to the fact that the law protects not just their faith but the manifestation of that faith. They would argue that their religion or belief expects particular dress and this is not something that can simply be ignored while at work.

However, if followed, Advocate General Kokott’s Opinion does seem to support a move towards separating an employee’s religion or belief and the way in which they express this, potentially paving the way for more inflexible workplace dress code policies.