Headscarves tied in knots

Sarah Lamont, Bevan Brittan

“Muslim headscarf can now be banned”, reports the press. But this is not the full picture. Sarah Lamont sets the record straight on dress codes and religious discrimination.

The background

The Directive

The Equal Treatment Framework Directive (the Directive) establishes a general framework for equal treatment in employment and occupation. Article 2 of the Directive prohibits direct and indirect discrimination on several grounds, including religion or belief.

This is transposed into Belgian law via its national legislation, which (like the UK) prohibits

  • direct discrimination on various grounds, including religion; and
  • indirect discrimination (where an apparently neutral provision, criterion or practice has a detrimental effect on individuals with specific characteristics, which includes those who hold a particular religious belief). Similarly to the UK, indirect discrimination in Belgium may be justified.

Previous case law on dress codes

Back in 2013, the European Court of Human Rights (ECtHR) decided that a Christian British Airways’ employee was entitled to wear a discrete visible cross outside her uniform (Eweida v United Kingdom) – contrary to British Airway’s uniform policy. The ECtHR held that to not allow this would infringe Mrs Eweida’s right to manifest her religious belief, under Article 9 of the European Convention on Human Rights.

The facts

Ms Achbita was employed by G4S Secure Solutions (G4S) as a receptionist.

G4S (in Belgium) has a ‘policy of neutrality’ which prohibits employees from wearing, in the workplace, any visible signs of their political, philosophical or religious beliefs.

Although Ms Achbita initially attended work without wearing a headscarf, she later announced that, in future, she would wear a headscarf during working hours, for religious reasons. As a result, Ms Achbita was dismissed.

Ms Achbita brought a discrimination claim in relation to her dismissal. In the course of proceedings, the Belgian Supreme Court asked the European Court of Justice (ECJ) whether G4S’s policy of neutrality amounted to direct discrimination under the Directive.

The decision

The ECJ held in Achbita v G4S Secure Solutions NV that the headscarf ban did not constitute direct discrimination. There was no evidence that Ms Achbita was treated differently compared to any other worker, so there was no difference in treatment, whether based on religion or otherwise – all employees were treated the same.

However, the ECJ then went on to make some comments about indirect discrimination (although it was not strictly obliged to do so, because this was not part of Ms Achbita’s case). The ECJ felt that the G4S policy on work-wear could amount to indirect discrimination, but that its desire to project a neutral image was legitimate. This approach is in line with the approach taken by the ECtHR, in the Eweida case (see above), in that the aim of projecting a certain corporate image may be allowable; but, it would then be for national courts to decide whether the way in which that aim was pursued by the employer was appropriate and necessary. The ECJ said that the G4S policy may be justified if it was approached in a consistent and systematic manner and did not go further than necessary – for example, if the policy only applied to employees in a customer facing role.

What does this mean for me?

This case was widely reported in the press as meaning that employers are now entitled to ban Muslim employees from wearing headscarves to work. This is, however, misleading; the true position is more nuanced and complex.

In both this case (and the 2013 Eweida decision) it was found that the aim of wishing to present a particular corporate image could ‘trump’ an employee’s right to manifest their religion. However, in the Achbita case, the ECJ only went as far as saying it would then be for the Belgian national courts to determine whether the way in which that aim was pursued was appropriate and necessary – and whether or not a national Belgian court would conclude that the dress was pursued in an appropriate manner would depend very much on the specific national context and the specific details of how G4S implemented their policy in Belgium. It may be that a Belgian court will decide that G4S did not pursue its policy in an appropriate and necessary manner and, even it did, a UK tribunal would not necessarily follow the same reasoning when interpreting the Equality Act 2010. In the Eweida decision, British Airway’s desire to project a particular corporate image was held to be legitimate but it was, ultimately, not objectively justified. The ECtHR felt that the UK tribunal had attached too much weight to that aim. Employers should, therefore, be wary of taking this latest ruling on dress codes as sanction for a ban on employees wearing Islamic headscarves to work.

In a decision on a similar question which was published at the same time as the Achbita case – Bougnaoui v Micropole – the ECJ held that a dismissal for wearing an Islamic headscarf at work, contrary to a customer’s objection to her wearing the headscarf, was directly discriminatory on grounds of religion or belief. However, in this case there was no general ban; a specific customer request was made and this could not justify the discrimination so it is the different factual context which is likely to have led to the opposite conclusion from the ECJ.