Headscarf ban is not direct discrimination but could be indirect

The issue of whether banning headscarves in the workplace amounts to discrimination has resurfaced at the ECJ in Achbita v G4S Secure Solutions.

There has been uncertainty as to whether a ban on headscarves at work amounts to religious discrimination. Ms Achbita was employed as a receptionist for G4S. It was G4S’ policy that employees could not wear any visible signs of their religious, political or philosophical beliefs at work. Ms Achbita announced she would be wearing her headscarf to work and was ultimately dismissed for failing to adhere to G4S’ dress code policy. The matter was taken through the Belgian courts and subsequently referred to the ECJ on the question of whether the policy was discriminatory.

The Attorney General held there was no direct religious discrimination as no one religion was being treated any differently to another. Even if this were not the case, the Attorney General felt such action could be a genuine occupational requirement, promoting neutrality thereby escaping liability for discrimination.

The ECJ agreed that the policy did not directly discriminate but held it could amount to indirect religious discrimination (although this was beyond the scope of the questions which had been put to it by the Belgian authorities). Nevertheless, where employers had sound justification which was proportionate in the circumstances there would be no liability. Notably, the ECJ held that promoting political, philosophical and religious neutrality in customer facing roles must be legitimate (our emphasis) which suggests that had they been asked to rule on the question, they may have found that any indirect discrimination was justified. This decision reinforces the view that an employee’s right to manifest their religious beliefs is likely to be overruled by an employer’s right to conduct its business in a reasonable manner, although proportionality will always be key. Here the ECJ queried whether it was open for G4S to have moved Ms Achbita to a non-customer facing role rather than dismiss, and it may well be that this may be deemed a reasonable step to be at least considered by employers before prohibiting an employee from expressing their religious beliefs.