Yes, in some circumstances. This week the EU Court of Justice has handed down decisions in two cases which deal with an employer’s ability to ban employees from wearing the Islamic headscarf in work.
The first case involved a receptionist, Miss Achbita, who worked for G4S in Belgium. Miss Achbita told G4S that she intended to start wearing an Islamic headscarf during work hours. G4S objected to this on the basis they had an internal rule prohibiting employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. Miss Achbita ignored this and continued to wear the headscarf. She was subsequently dismissed and challenged the decision in the Belgium courts.
The Court of Justice was asked to consider whether G4S’ rule prohibiting the wearing of an Islamic headscarf amounted to direct discrimination on the grounds of religious beliefs. Briefly, direct discrimination arises when someone is treated less favourably than another person because of their religious beliefs. The Court confirmed that G4S’ rule did not amount to direct discrimination because it applies to any manifestation of religious beliefs and as a result it treats all employees in the same way by requiring them, without differentiation, to dress neutrally.
The Court went on to point out however that the rule could potentially amount to indirect discrimination. This arises when an employer applies an apparently neutral provision, criterion or practice that puts or would put people with a particular religious belief at a particular disadvantage. It is possible to justify indirect discrimination where you can demonstrate the treatment was an appropriate and necessary means of achieving a legitimate aim. The Court gave some guidance on this and in its view an employer’s desire to project an image of neutrality towards its customers would be a legitimate aim and, assuming it was applied consistently and systematically, the ban would also be an appropriate means of ensuring the policy of neutrality was properly applied. The question of whether the ban was necessary would depend on whether it only covered workers who interact with customers or not. If it did, the ban would also be necessary. The case will go back before the Belgium courts who will have to decide whether the ban is appropriate and necessary. They will also have to consider whether G4S could have moved Miss Achbita to a non-customer facing role instead of dismissing her.
The second case had slightly different facts in so far as it is not clear whether there was any express rule prohibiting the wearing of a headscarf. In this case, the employer was faced with a complaint from a customer who objected to an employee wearing an Islamic headscarf. The employer asked the employee not to wear the veil in future and she refused. She was subsequently dismissed. The question for the Court of Justice was whether the employer’s willingness to take account of the customer’s wish was justified. Under EU law it is possible to justify discrimination where, due to the nature of the activities or context in which they are carried out, the requirement related to religion (i.e. not wearing a headscarf) is a genuine and determining occupational requirement (GDOR). The Court pointed out that there will only be very limited circumstances in which a characteristic related to religion will constitute a GDOR and that it does not cover subjective considerations. In view of this the employer could not rely on the customer’s unwillingness to be served by an employee wearing a headscarf to justify discrimination.
The decision in the G4S case has received widespread press attention and is likely to be welcomed by most employers. It is important not to be misled by the headlines however and to remember that the case involved a rule that prohibited the manifestation of all political, philosophical and religious beliefs. As such, a ban that focuses purely on the wearing of a headscarf would amount to both direct and indirect discrimination. It is also important to remember that the Belgium courts are going to have to consider whether G4S could have moved Miss Achbita to a non-customer facing role thereby avoiding her dismissal. Clearly this is something employers would have to consider if faced with a similar situation.
European court of justice says garments can be banned as part of general policy covering religious and political symbols