Workplace bans on wearing religious symbols: ECJ decisions
Tuesday 21st March 2017
The ECJ has held that workplace bans on wearing religious symbols are potentially lawful. However, acceding to the wishes of customers who object to religious symbols cannot be a genuine occupational requirement.
In Achbita & anor v G4S Secure Solutions NV, G4S’ ban on wearing any religious, political or philosophical symbols was not directly discriminatory against a Muslim woman who was unable to wear her headscarf in the workplace.
Ms Achbita was employed in Belgium as a receptionist until her dismissal in June 2006. The decision to dismiss resulted from her having expressed her intention to wear an Islamic headscarf at work. For more than 3 years prior to her dismissal, Ms Achbita had worn a headscarf outside working hours only and had not, at any time, objected to the G4S policy.
The ECJ considered that the internal rule covered any manifestation of religious beliefs without exception and there was no evidence to suggest that Ms Achbita was treated differently than any other employee. Therefore, the rule was not directly discriminatory.
Although a matter for the Belgian court to determine, the ECJ offered guidance on the potential for indirect discrimination and the objective justification defence. The ECJ considered that maintaining neutrality was a legitimate aim, but suggested only for public-facing employees, adding that whether Ms Achbita could have been redeployed to a role which did not involve any contact with clients should be examined.
In Bougnaoui and anor v Micropole SA, Ms Bougnaoui was dismissed after a customer complained that she was wearing an Islamic headscarf. Micropole referred to the need to maintain neutrality and asked her not to wear the headscarf again. Ms Bougnaoui objected and was dismissed.
The ECJ held that it was for the French court to determine whether Ms Bougnaoui was dismissed as a result of non-compliance with an internal rule. If so, the conditions which permit such a rule, as set out in Achbita, must be met, meaning any difference in treatment arising from an apparently neutral rule must be capable of objective justification.
However, if Ms Bougnaoui was dismissed because of a customer complaint, the ECJ held this could not be justified by the “genuine and determining occupational requirement” defence, which was narrow in scope and did not cover subjective considerations.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.