Employment Law Cases

Achbita v G4S Secure Solutions; Bougnaoui v Micropole SA

Sometimes, says the European Court of Justice (ECJ). However, one thing the decisions have definitely not done is given the green light to any employer to ban headscarves in the workplace.

The ECJ has confirmed that a general rule, imposed on all customer facing employees, banning the display of any political, religious or philosophical symbols, designed to ensure religious neutrality, is not direct discrimination but may be indirect discrimination that can be justified. However, if such a rule does not exist and a woman is asked to remove a headscarf based on the objections of one customer, then this is discrimination on the grounds of religion and belief which cannot be justified.

In the first case (Achbita) her employer G4S had a rule which they applied to all customer facing employees which was that because of the nature of the work they did, providing guarding, security and reception services to many public and private customers, no employee was to wear any religious, political or philosophical symbols while on duty to ensure political, philosophical and religious neutrality.

Ms Achbita refused to comply, wore her headscarf and was dismissed. The ECJ made the point that as this rule was applied to everyone with no suggestion of some employees being treated differently to others, it did not introduce a difference of treatment directly based on religion or belief, but based on neutrality, therefore it could not be direct discrimination.

However, the ECJ confirmed that such a rule was potentially indirect discrimination, but with the ability for the employer to successfully defend this on the grounds of objective justification. Did they have a legitimate aim and was the way they went about it appropriate and necessary, balancing the needs of both parties.

The court gave guidance on when objective justification could be argued. It said that the employer’s desire to project an image of neutrality towards both its public and private sector customers would be considered a legitimate aim, and so long as it was genuinely pursued in a consistent and systematic manner then the policy should be considered appropriate. Provided that the policy was limited to those who interacted with customers then it could be considered strictly necessary given the nature of the work that they did. However, the ECJ made it clear that the national court would have to consider whether G4S could have offered Ms Achbita a role that did not involve any visual contact with customers instead of dismissing her.

The second case decided was Bougnaoui v Micropole SA, Ms Bougnaoui worked as a design engineer and when she was recruited it was made it clear to her that, due to the customer-facing nature of her role, she would not be able to wear her headscarf at all times. Following a site visit, a customer complained that she had worn her headscarf and requested that she not do so in future. When Ms Bougnaoui refused, she was dismissed.

The ECJ said that if there is no such general rule as was applied in Achbita (and it was not clear on the facts they had if there was or not) and the employer relies on a customer’s objections to being served by an employee who wears an Islamic headscarf as a reason to dismiss that employee, such treatment is discriminatory and cannot be defended on the basis of a ‘genuine and determining occupational requirement’ under Article 4 of the EU Equal Treatment Framework Directive. This defence does not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of the customer.

Link to judgments: http://www.bailii.org/eu/cases/EUECJ/2016/C15715.html and http://www.bailii.org/eu/cases/EUECJ/2017/C18815.html

Comment

The idea of religious neutrality in the UK, which claims to embrace diversity and multi-culturism, is perhaps a difficult one to understand. In our multi-cultural society, do we want everyone to look the same? Do we want to hide away those who display signs of their faith and have a series of clones sanitised from every ounce of belief, who are customer facing? Is not the bigger problem those who object to talking to someone with a turban, headscarf or a veil? Whilst there may be genuine reasons why a veil hinders an employee - as a teacher perhaps, because of the need for young children to see the full face to learn better, the number of genuine reasons must be very limited.

However, if an employer does genuinely believe that it needs to remain religiously neutral and restricts any such requirements to those in a customer facing role, then they may, sadly, be justified in doing so.