Does a ban on a Muslim employee wearing a headscarf constitute direct or indirect discrimination?
If an employer imposes a dress code which bans the wearing of a headscarf, will this constitute religious discrimination?
This question has been referred to the European Court of Justice, and the Advocate General has recently delivered her opinion in Achaia and Centrum door gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions.
What was the case about?
A Muslim employee began to wear a headscarf at work three years into her employment despite the company’s dress code, which prohibited the wearing of any visible signs of political, philosophical or religious beliefs. She was ultimately dismissed by her employer, G4S Secure Solutions, a Belgian security company, for contravening the dress code. She appealed and the Belgian courts referred the question of whether the ban constituted discrimination to the European Court of Justice.
What did the Advocate General say?
The Advocate General’s opinion is that the headscarf ban did not amount to direct discrimination based on religion or belief. This was because of its neutrality, i.e everyone was subjected to the dress code in the same way. For example, the ban could just as easily affect a male employee of the Sikh faith who wears a turban. In her opinion, the practice was not based on stereotypes or prejudice in relation to particular religions, as the ban applied to all visible religious and philosophical symbols.
Although the ban did not constitute direct discrimination, the Advocate General said it may amount to indirect discrimination, as the dress code was capable of putting individuals of certain religions or beliefs at a particular disadvantage by comparison with other employees. Therefore it was necessary to consider whether the ban was in pursuit of a legitimate objective, and whether it was a proportionate response to achieving the desired aim.
Although the issue of proportionality was a question for the national courts, the Advocate General gave her opinion finding in favour of G4S.
The objective relied upon by G4S, was its policy of religious and ideological neutrality. It wanted to avoid external individuals associating with G4S itself or with one of its clients, the political, philosophical or religious beliefs of one of its employees. The Advocate General considered this to be a legitimate objective.
It was also accepted that the aim of neutrality was a fair means of achieving the objective. In considering proportionality, the Advocate General placed significant emphasis on the fact that the rule was applied and enforced consistently by G4S in relation to all of its employees.
The Advocate General went on to consider whether the desired objective could have been achieved by other, less restrictive means. For example, the European Commission suggested that G4S could have provided female Muslim employees with a headscarf in the same colour as the uniform. This argument was rejected because it would still constitute a religious symbol and so inappropriate to achieve the objective of religious and ideological neutrality.
Significant weight was placed on the view that, the claimant could moderate the practice of her religion in the workplace. The Advocate General said “there are some religious customs which the employee does not necessarily have to observe in the workplace, but can generally perform outside work as well".
What does this mean?
The opinion is surprising in a number of respects. Firstly, the view that the claimant could moderate the practice of her religion by removing her headscarf whilst at work is contrary to the beliefs of many Muslims, for whom the wearing of a headscarf is an inerrant facet of practising their religion. Furthermore, the significant importance attached to neutrality and promoting G4S’s corporate image was also very surprising, and appears to be wholly inconsistent with a decision of the European Court of Human Rights in Eweida v British Airways (in which the dress code adopted by British Airways prevented Ms Eweida from wearing a chain with a cross). This case held that corporate image was not a justifiable reason to stop Ms Eweida from manifesting her religious belief by the wearing of a cross.
It is noteworthy that the Advocate General’s opinion is not binding on the ECJ or national courts, but if followed by the ECJ, it may be easier for employers to justify dress codes which include a ban on articles of religious dress.
For more information on the issues raised above or any other employment related matter, please contact a member of the Employment Team.