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Headscarf-related dismissal not direct discrimination: CJEU

14 March 2017

An employer's internal rule prohibiting the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination, the EU Court of Justice held today.

In a case referred from the Belgian courts concerning the company G4S, the court ruled against a Muslim employee, Samira Achbita, who had challenged her dismissal for wearing an Islamic headscarf while employed as a receptionist, after the company had adopted a rule prohibiting employees from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs.

However, the court, which also provided guidance for national courts on when a rule might be found to constitute indirect discrimination, also held in a separate French case that in the absence of such a rule, the willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf, could not be considered an occupational requirement that could rule out discrimination.

In Ms Achbita's case there had initially been an "unwritten rule" against such dress because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers. When Ms Achbita insisted on wearing her headscarf, a formal rule was adopted; Ms Achbita was dismissed the day before it came into force because of her continuing insistence on wearing the Islamic headscarf at work.

In its judgment, the court stated that although "religion" was not defined in the Equal Treatment Directive under which the case was brought, having regard to the European Convention on Human Rights and the Charter of Fundamental Rights of the EU, the concept had to be interpreted as covering both the fact of having religious belief and the freedom of persons to manifest that belief in public.

It found that G4S’s internal rule referred to any manifestation of political, philosophical or religious beliefs without distinction. The rule thus treated all employees in the same way; it did not appear that the rule was applied differently to Ms Achbita as compared to other G4S employees, and it did not therefore introduce a difference of treatment that was directly based on religion or belief, for the purposes of the directive.

However a national court might conclude that such a rule introduced a difference of treatment that was indirectly based on religion or belief, should it be established that the apparently neutral obligation in fact resulted in persons adhering to a particular religion or belief being put at a particular disadvantage.
This would not be the case if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary.

Furrther by way of guidance, the court stated that an employer’s desire to project an image of neutrality towards both its public and private sector customers was legitimate, notably where the only workers involved were those who come into contact with customers. That desire related to the freedom to conduct a business, which was recognised in the Charter.

A ban on visible wearing of signs of beliefs was appropriate for the purpose of ensuring that a policy of neutrality was properly applied, provided that policy was genuinely pursued in a consistent and systematic manner, which was for the national court to ascertain.

In this instance, it was also necessary to ascertain whether the prohibition covered only G4S workers who interacted with customers. If that was the case, the prohibition had to be considered strictly necessary for the purpose of achieving the aim pursued.

It should also be ascertained whether, taking into account business constraints, it would have been possible for G4S to offer Ms Achbita a post not involving any visual contact with those customers, instead of dismissing her.

Click here to view the Achbita judgment.

In the French case, which concerned the dismissal of Asma Bougnaoui by her employer Micropole following a complaint by a customer to whom she had been assigned, the court said that it was for the French court to ascertain whether the dismissal was based on non-compliance with an internal rule prohibiting the visible wearing of signs of political, philosophical or religious beliefs. If so, it was for that court to determine whether the conditions set out in the judgment in G4S were satisfied.

If the dismissal was not based on the existence of such an internal rule, it would be necessary to determine whether the willingness of an employer to take account of a customer’s wish no longer to have the employer’s services provided by a worker who wore an Islamic headscarf was justified for the purposes of article 4(1) of the directive, which covers genuine and determining occupational requirements, provided that the objective is legitimate and the requirement is proportionate.

However the court pointed 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. It did not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of the customer.

Click here to view the Bougnaoui judgment.

 

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