Was a ban on headwear religious discrimination?

The vexing question of dress codes and religious clothing or symbols has been considered at the European Court of Justice (ECJ), the highest court in the EU, in a case called ‘Achbita’ involving a Belgian private sector security officer working for G4S, who wished to wear an Islamic headscarf whilst on duty and was dismissed due to the employer’s rules prohibiting staff from wearing any form of religious, political or philosophical symbols at work. Ms Achbita brought a claim in a Belgian Labour court for religious discrimination. Her claim was dismissed and in the appeal process, the issue of whether a ban on headscarves could form the basis of a discrimination claim was referred to the ECJ.

It is important to note the following: 1. The ECJ does not decide a case, it ‘answers questions’ from courts in EU states about the law in a particular area of EU law, so that the law can be clarified and applied consistently throughout the EU. 2. This ruling is only a ‘preliminary ruling’ from the ‘Advocate-General’, an official who makes recommendations to the full court, and this ‘ruling’ can be disregarded by the full court when it considers the case.

The Advocate-General decided that a ban on headgear was not aimed at the employee as a Muslim or as a woman, and noted that a Sikh man wearing a turban at work would have been treated in the same way, so there was no religious discrimination. Furthermore the ban was not aimed at religion as such, but also any clothing or items (e.g. badges) that might indicate a religious or a philosophical belief. This ban on any religious symbols in the workplace was not regarded as an interference with freedom of religion as such. However, a ban based on stereotypes or prejudice against purely religious clothing or symbols (which did not apply to, say, political symbols) would be unlawful, as it would suggest discrimination was occurring because of religion, whilst leaving employees exhibiting ‘philosophical beliefs’ alone.

In respect of indirect discrimination, where a rule that appears to be neutral puts some people of a particular faith at a disadvantage, even if it is not intended to do so, the Advocate-General found that there was no unlawful discrimination. Indirect discrimination can take many forms e.g. a requirement to work on a particular holy day, but it can be lawful if it is justified, for example a requirement to cover hair on health grounds in a medical environment. Here the Advocate-General indicated that it would be by no means unreasonable (i.e. justifiable) for an employer such as G4S to be permitted to use its discretion to require staff in a reception role to comply with a dress code as part of an occupational requirement for the job, but each case would depend on its facts. Here, G4S had a policy of projecting an image of religious and ideological neutrality which the Advocate-General regarded as being within the discretion permitted to an employer, particularly one with private and public sector clients given the nature of the work done.

The Advocate-General also indicated that religion or belief is not an unalterable fact about a person (unlike sex or ethnicity) but rather an aspect of an individual’s private life, over which an employee may exert an influence, and whilst an employee cannot leave his ‘age’ at the door upon entering work premises, he may be expected to moderate his religious practices (or philosophical beliefs) in the workplace in certain circumstances. This is a strong indicator that discrimination law should be interpreted in a ‘common sense’ manner with reasonable employers having leeway for sensible and proportionate dress codes to be implemented without fear of breaching discrimination law.

The Advocate-General’s opinion now goes forward to the full Court for a final hearing, and that may result in greater clarity as to the scope that employers have to impose appropriate dress codes for staff. This judgment may also clarify the law after a potentially conflicting judgment in Eweida (the British Airways check-in employee who was disciplined for wearing a cross), in which the airline’s ban on the wearing of a cross was found to be an interference with the right to express religious belief. However, the final judgment of the Court will not come out until at the earliest much later in 2016, and it may be completely different. Deminos will be ready to advise fully on the final judgment.