News Updates

Workplace bans on wearing religious symbols

Wednesday 13th July 2016

In Achbita & anor v G4S Secure Solutions NV, the Advocate General of the European Court of Justice expressed the opinion that G4S’ ban on wearing any religious, political or philosophical symbols was not directly discriminatory against a Muslim woman who was unable to wear her headscarf in the workplace.

G4S considered its neutrality in respect of religion and ideology to be central to its business and ability to provide services to its clients. In order to achieve this neutrality, G4S operated a policy prohibiting employees from wearing any religious, political or philosophical symbols while on duty.

Ms Achbita was employed as a receptionist until her dismissal in June 2006.   The decision to dismiss resulted from her having expressed her intention to wear an Islamic headscarf at work. For more than 3 years prior to her dismissal, Ms Achbita had worn a headscarf outside working hours only and had not, at any time, objected to the G4S policy. Following her dismissal, Ms Achbita brought claims for wrongful dismissal and discrimination in the Belgian Labour Court.   A preliminary question was referred to the ECJ.

The ECJ was asked if prohibiting a female Muslim employee from wearing a headscarf in the workplace amounts to direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs. In the non-binding opinion of the AG, such a prohibition did not amount to direct discrimination based on religion. While G4S’ policy could constitute indirect discrimination, the Belgian court considered it could be justified and therefore this did not form part of the referral to the ECJ.

The AG emphasised that the ban applied to all religious, political and philosophical symbols without distinction and there was no evidence of any less favourable treatment of Ms Achbita compared with members of another faith or with confirmed atheists.

The AG also considered that the ban was potentially capable of constituting a genuine occupational requirement. The policy or difference in treatment must, however, pursue a legitimate objective and the genuine occupational requirement must be a proportionate means of achieving it. The AG considered maintaining religious and ideological neutrality was crucial to G4S’ business and therefore was a legitimate aim. While economic grounds alone cannot be an acceptable reason for differences in treatment, employers do have a fundamental freedom to run their business, including the right to set and enforce a company dress code. As no suitable alternatives had been identified, G4S’ ban was necessary and appropriate. The AG noted that the proportionality issue was one for individual national courts to determine but would involve consideration of various factors.

However, on 13 July 2016, a different AG issued a conflicting opinion in the case of Bougnaoui and anor v Micropole SA, stating that the dismissal of a Muslim woman for wearing her Islamic headscarf at work was directly discriminatory and could not be defended as a genuine occupational requirement, which must be given a narrow interpretation.

The ECJ is expected to give its judgment in both cases later this year.

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.