Posted by Richard Woodman, Partner
Headscarf ban justified
The Advocate General has given his opinion in the case of Achbita and Another v G4S Secure Solutions NV on a question that was referred to the European Court of Justice for an opinion on whether prohibiting female Muslim employees from wearing headscarves at work constituted direct discrimination contrary to the Equal Treatment Framework Directive.
G4S has a strict code of conduct that employees “are not permitted to wear any religious, political or philosophical symbols while on duty”. The company provides security, guarding and reception services to various customers from the public and private sectors. The claimant worked in Belgium as a receptionist but was dismissed on account of her intention to wear the Islamic headscarf, being Muslim. Her claims of wrongful dismissal and/or discrimination were dismissed by the local Courts which did not find direct or indirect discrimination; the Appeal Court dismissed her appeal. The final right of appeal in Belgium, the Court of Cassation, referred a preliminary question to the ECJ on whether the prohibition on wearing headscarves was direct discrimination.
The Advocate General gave the opinion that it could not be classified as direct discrimination. The Framework Directive required direct discrimination to occur where one person is treated less favourably than others in a comparable situation. The Advocate General stated that the ban applied to all religious symbols without distinction and furthermore covered political and philosophical ones so it could not be said to constitute less favourable treatment that was directly linked to one specific religion. The Advocate General also considered that, even if direct discrimination was established, it could be justified under the “genuine and determining occupation requirement” exemption in Article 4 of the Equal Treatment Framework Directive insofar as it was proportionate to require compliance with a dress code that gave effect to the employer’s strict policy of neutrality.
It remains to be seen whether the ECJ follows the Advocate General’s opinion, but it is usually the case that it does.
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