Nikolas Clarke considers the CJEU’s controversial decision in Achbita v. G4S Secure Solutions NV on the lawfulness of banning staff from wearing religious dress.
Introduction
The CJEU delivered two judgments yesterday in cases about the wearing of Islamic headscarves at work: Achbita and Bougnaoui and ADDH v. Micropole SA. The latter is not particularly controversial (finding that the exception for genuine and determining occupational requirements under Art. 4.1 of the Framework Directive is narrowly construed where religion is in issue, and can take no account of the subjective willingness of the employer to comply with a customer’s wishes), so this article just concentrates on Achbita.
At first blush the CJEU has ruled that it is lawful for an employer to ban a Muslim from wearing an Islamic headscarf at work. Of course it is more complicated than that but this is a controversial topic and looks to be a surprising decision.
The Facts
Ms Achbita worked for G4S as a receptionist for clients in both the private and public sectors. She informed her employers, some years after her employment started, of a future intention to wear a headscarf. G4S had an unwritten “neutrality” rule that was formally included in the workplace regulations after Ms Achbita’s disclosure. It prohibited the wearing of physical signs of political, philosophical or religious beliefs. Ms Achbita continued to insist that she would wear a headscarf and was dismissed.
The question referred was whether the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?’
Direct Discrimination
The Court concluded that the internal rule did not introduce a difference of treatment that was directly based on religion or belief because it,
“refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction. The rule must, therefore, be regarded as treating all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs”
The logic here is difficult to follow. Whilst the rule might be said to apply across the board, it is directed at those that hold political, philosophical or religious beliefs. How is that not an act of direct discrimination? Why is an act whose motivation is to treat all religions less favourably not direct discrimination on grounds of a protected characteristic? If, for example, a company had a policy that it would employ nobody who practised a recognised religion, surely the CJEU does not intend to suggest that would not be directly discriminatory because all religions are there treated equally?
Indirect Discrimination
Oddly, the Court was not asked to rule on indirect discrimination, but gave a view nevertheless. It assumed that the referring court might find unequal treatment based on religion and went on to consider whether such treatment was objectively justified by a legitimate aim through appropriate and necessary means. It concluded that:
- The desire to display to customers, a policy of political, philosophical or religious neutrality must be considered legitimate. Eweida and Others v. United Kingdom.
- Prohibiting the wearing of visible signs of political, philosophical or religious beliefs is an appropriate means of meeting that policy provided that it is genuinely pursued in a consistent and systematic manner.
- If the prohibition only applied to workers who interact with customers it was strictly necessary.
- It was for the referring court to consider whether G4S could have redeployed Ms Achbita, taking into account inherent constraints and without G4S being required to take on an additional burden, and accordingly what impact that had on the assessment of the proportionality of Ms Achbita’s dismissal.
The reference to Eweida is interesting. Ms Eweida, a Coptic Christian was required, by her employer British Airways, to cover her cross necklace. The ECHR concluded that the state had not protected her Article 9 rights in according too much weight to BA’s wish to maintain a certain corporate image. It is difficult to reconcile that conclusion, namely that BA’s requirement was disproportionate to the aim, with the CJEU’s view that such a policy is permissible as long as it is consistently and systematically applied. That latter formula would, on the face of it, have allowed BA to ask Ms Eweida to remove her cross altogether.
Conclusion
To return to the start of this article, the CJEU’s decision in Achbita does not rule that it is lawful to ban Islamic dress, merely that it may be lawful to do so. It is, however, a decision with alarming consequences, providing, as it inevitably does, encouragement to racist business owners to have neutrality policies and to use them as an excuse not to employ religious Muslims (or those of other religions with outward articles of faith) in customer-facing positions.
The judgment in Achbita can be found here.