Is the wearing of political, philosophical or religious signs direct discrimination under EU law?

12 June 2017

The Court of Justice of the European Union issued a decision in March of this year in the case of Samira Achbita, a Muslim, who was employed as a receptionist by G4S in Belguim. At the time of her recruitment there was an unwritten rule within the company that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace.

Is the wearing of political, philosophical or religious signs direct discrimination under EU law?

In April 2006, Ms Achbita informed her employer that she wished to wear an Islamic headscarf during her working hours, at which the management advised her that the wearing of a headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality that G4S adopted in its contracts with its customers.  Ms Achbita was absent for a period of sickness and she notified her employer that on her return on 15 May 2006 she would be wearing her Islamic headscarf.

On 29 May 2006 the G4S works council approved an amendment to the workplace regulations which came into force on 13 June 2006 which stated “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”.  On 12 June 2006 Ms Achbita was dismissed because of her continuing insistence on wearing the Islamic headscarf at work.  She brought a claim in Belgium under the EU directive and the Belgium Courts referred the matter to the European Court of Justice on the question on whether or not the prohibition on wearing an Islamic headscarf which arises from a general internal rule of a private undertaking, constitutes direct discrimination.

The Court of Justice issued its decision on 14 March 2017 which stated that the G4S internal rule refers to the visible signs of political, philosophical or religious beliefs and therefore by itself covers any manifestation of such beliefs and the rule therefore treats all employees in the company in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally.

The Court however did go further than this and stated that it was not inconceivable that a national Court might conclude that the internal rule introduces a difference of treatment that is indirectly based on religion or belief, should it be established that the apparently mutual obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, however it would not amount to indirect discrimination if it could be justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary.  The Court further stated that an employer’s desire to protect an image of neutrality towards both its public and private sector customers is legitimate, notably where the only workers involved are those who come into contact with customers.  The European Court of Justice stated that the national Court in Belgium must ascertain whether G4S had, prior to her dismissal established a general and undifferentiated policy in that respect. 

The matter was referred back to the Belgium Court to take into account whether the prohibition was strictly necessary for the purpose of achieving the aim pursued for example to ascertain whether the prohibition only covers G4S workers who interact with customers and whether taken into account 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.

Employers should always seek professional legal advice in relation to equality matters and the introduction of policies or procedures which may potentially impact upon a religion or a political belief or the manifestation of that belief.

Maxine Orr is a Partner specialising in employment law in Worthingtons Commercial Solicitors.

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