In 2003 Ms Achbita started working at G4S as a receptionist. The Company had an unwritten rule, prohibiting workers from wearing visible signs of their political, philosophical or religious beliefs in the workplace.
Three years later, Ms Achbita informed her managers that she intended, in the future, to wear an Islamic headscarf during working hours. Shortly after, G4S changed its workplace regulations to provide that ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’. Two weeks later, Ms Achbita was dismissed because of her continuing insistence that she wished, as a Muslim, to wear the Islamic headscarf at work.
Ms Achbita brought an action against her dismissal in the Belgian courts, which ruled that the dismissal was justified and that there had been no direct or indirect discrimination. The case went all the way to the Belgian Supreme Court, which referred the question to the ECJ whether the prohibition on wearing, as a female Muslim, a headscarf at work constitutes direct discrimination if the employer has introduced a workplace rule prohibiting all employees from wearing outward signs of political, philosophical and religious beliefs at work.
The ECJ ruled that the prohibition was legitimate and that the headscarf ban did not constitute direct discrimination as there was no evidence that that Ms Achbita was treated differently as compared to any other workers.
By contrast, the ECJ considered that this type of ban may constitute indirect discrimination if “the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary”. This would be a question for the referring court to ascertain.
The position is different if an employer has not introduced an express workplace rule on displays of religious adherence. In the case of Bougnaoui and another v Micropole SA which the ECJ decided on the same day, the court held that a French employee who had been dismissed for refusing to remove her headscarf at the request of a client had been directly discriminated against because the employer had not introduced a workplace rule which applied to all employees. The test of justification was therefore more onerous and the employer would have to show that the prohibition was based on a genuine and determining occupational requirement, which cannot include an instruction from a client requiring an employee to remove her headscarf.
For queries in relation to employment matters, please contact Stephen Morrall or your usual contact at Hunters.