Direct Discrimination: AG rules ban on Muslim headscarf allowed if legitimate neutrality policy
In the case of Samira Achbita, Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV (C-157/15, lodged on 3 April 2015) the Hof van Cassatie (Belgian Supreme Court) requested a preliminary ruling from the Advocate General (Juliane Kokott). The question was whether Article 2(2)(a) of Council Directive 2000/78/EC (used to establish equal treatment in employment and occupation) should be interpreted as meaning that the prohibition on a female Muslim wearing a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace? Samira Achbita was a receptionist at G4S in Belgium, and after three years working there she decided to start wearing the hijab at work. G4S has a policy of religious and ideological neutrality in the workplace and therefore she was dismissed for not complying with that policy.
The Advocate General decided that it is justifiable to ban wearing head scarves where there is a general company rule which prohibits the wearing of all visible political, philosophical and religious symbols in the workplace, which in turn enables the employer to undertake the legitimate policy of ensuring religious and ideological neutrality. Thus, if the ban is founded on a general company rule to ensure neutrality rather than religious stereotypes or prejudices then there is no less favourable treatment on the grounds of religion and is not direct discrimination. This policy was a legitimate commercial choice made by the employer given its client and service range, and therefore the dress code was both appropriate and necessary. She went on to say that it could be indirect discrimination based on religion though, however this could still be justified to enforce the policy of religious and ideological neutrality if the proportionality principle was properly applied. She stressed that the proportionality test was a delicate one with which the national courts must be able to use their discretion. In doing so they should consider the following elements:
- the size and conspicuousness of the religious symbol,
- the nature of the employee’s activity,
- the context in which she has to perform that activity and
- the national identity of the Member State concerned.
Whilst this Opinion is not binding on the ECJ it is influential. The case will now proceed to the ECJ for a full hearing. This is the first time the matter of religious discrimination under the Equality Directive will be considered. As the Attorney General pointed out: “a very similar question also forms the subject of Asma Bougnaoui, Association de défense des droits de l’homme (ADDH) v Micropole Univers SA (Case C-188/15), which originated in France and is currently pending. In both cases, the Court is expected to give a landmark decision the impact of which could extend beyond the specific context of the main proceedings and be ground-breaking in the world of work throughout the European Union, at least so far as the private sector is concerned”.
Critics point out that the AG suggests that religion is a matter of choice and seeks to imply that therefore it should be given lesser protection than other grounds, arguing that the mutability of beliefs is in actual fact specifically protected by the Directive.
Published: 22 June 2016