In Achbita v G4S Secure Solutions, the ECJ decided that an employee dismissed for insisting on wearing a headscarf in the workplace did not suffer direct discrimination. This was on the basis that the dismissal was further to a company policy which banned all wearing of political, religious or similar signs regardless of any particular religion or belief. However, the ECJ stated that an employer may be indirectly discriminating against an employee if they are not able to justify such a requirement.
In Achbita v G4S Secure Solutions, Ms Achbita worked as a receptionist at G4S. G4S had a company policy that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. She was dismissed because she insisted on wearing the Islamic headscarf at work.
The ECJ held that G4S’s company rule prohibiting the wearing of visible signs of political, philosophical or religious beliefs is not directly discriminatory on the ground of religion or belief because the rule treats all employees in the same way, namely, requiring them to dress neutrally. Further, it was not evident that the rule was applied differently to Ms Achbita than to other employees.
However, the ECJ further held that such a prohibition may constitute indirect discrimination if the rule results in persons adhering to a particular religion being put at a particular disadvantage. Such indirect discrimination may be objectively justified by a legitimate aim (in this case, the employer’s pursuit to have a policy of political, philosophical and religious neutrality in its relations with customers would be considered a legitimate aim) provided that the means of achieving that aim are appropriate and necessary. However, it was for the national court to decide whether it would have been possible for G4S to offer Ms Achbita a different role that didn’t involve her coming into contact with any customers.
We previously reported on the Advocate General’s opinion in Bougnaoui and anor v Micropole in July 2016. This case was also considered by the ECJ. Ms Bougnaoui worked as a design engineer for Micropole. When she was recruited, it was made clear to her that, due to the customer-facing nature of her role, she wouldn’t be able to wear her headscarf at all times. Following a complaint from a customer, Micropole asked Ms Bougnaoui not to wear the headscarf in future. She objected and was subsequently dismissed. The Advocate General was of the opinion that the requirement for Ms Bougnaoui not to wear a headscarf when in contact with customers could not be a ‘genuine and determining occupational requirement’.
The ECJ noted that it was not clear whether the national court had found treatment based on directly or indirectly discriminating on the basis of religion or belief. Also, it was not clear whether Micropole operated a neutral policy to all political, philosophical or religious beliefs, as the employer did in Achbita. The ECJ held that these issues would have to be determined by the national court in light of the Achbita ruling. However, the ECJ did hold that if there is no such general company rule or policy, then an employer who relies on a customer’s objections to an employee wearing a headscarf as a reason for that employee’s dismissal will not be able to defend the dismissal on the basis of a ‘genuine and determining occupational requirement’ under Article 4 of the EU Equal Treatment Framework Directive.
Nick Benton comments: "This case serves as a reminder that dress codes should be carefully considered by employers in relation to their impact on increasingly diverse workforces. If there is a potentially discriminatory element then employers will need to consider whether any such element is an appropriate and necessary means of achieving their legitimate business aims".
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