ECJ rules workplace headscarf ban is not discriminatory

On 14 March 2017, the European Court of Justice (ECJ) ruled in Achbita and another v G4S Secure Solutions NV, that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of the EU Equal Treatment Framework Directive.

G4S provides security and guarding services to various customers, its employee code of conduct states that employees are not permitted to wear any religious, political or philosophical symbols while on duty. The claimant, Achbita, worked for the company in Belgium as a receptionist until she was dismissed on 12 June 2006 on account of her intention to wear the Islamic headscarf.

In spite of the ECJ ruling, an entirely neutral policy can constitute indirect discrimination if it cannot be justified as proportionate to the pursuance of a legitimate aim, including the interests of an employer’s business. The court however states that such a policy would be appropriate so long as it was genuinely pursued in a consistent and systematic manner.

By contrast, in Bougnaoui v Micropole SA, the ECJ on 14 March 2017 held that if there is no such general internal rule and an employer relies on a customer’s objections to being served by an employee who wears an Islamic headscarf as a reason to dismiss the employee, such treatment is discriminatory. The claimant, Ms Bougnaoui is a Muslim woman who was employed as a design engineer by Micropole SA, she entered into a contract of employment on 15 July 2008 and whilst in employment she wore, at times of her choice, an Islamic headscarf. As part of her duties, the claimant was required to meet Micropole’s clients on their premises and following a complaint from one of those clients, she was asked to stop wearing a headscarf. The claimant was dismissed because of her refusal to comply with the request.

It was found that such treatment cannot be defended on the basis of a ‘genuine and determining occupational requirement’ under Article 4 of the Equal Treatment Framework Directive. The ECJ points out that it is only in very limited circumstances that a characteristic related, in particular, to religion may constitute a genuine and determining occupational requirement, a concept which refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or the context in which they are carried out and does not cover subjective considerations.

It remains to be seen how these rulings from the ECJ will be interpreted in the UK given upcoming Brexit negotiations, as for now at least, the decisions will have to be followed by our courts. Employers should, in any case, be cautious of their approach to restrictions on religious dress, and ensure that all policies apply to employees equally and must not adversely impact one protected group more than others, unless justified as a proportionate means of achieving a legitimate aim.

Dominic Bonham