Ban on Religious, Political and Philosophical Symbols Not Direct Discrimination


5 mins

Posted on 06 Jun 2016

A company’s ban on employees wearing religious, political or philosophical symbols did not amount to direct religious discrimination, according to the Advocate General.

Speedread

A company’s ban on employees wearing religious, political or philosophical symbols did not amount to direct religious discrimination as it applied to all religions, without distinction, and extended to political and philosophical symbols as well. It was not therefore specifically linked to religion. In any event, the ban could be justified as a genuine and determining occupational requirement as it was part of G4S’s policy of religious and ideological neutrality which was crucial to its business. It was for the national court to decide whether the ban unduly prejudiced employees. 

Facts 

G4S provides security, guarding and reception services to customers in both the public and private sectors. Its code of conduct states that employees are not permitted to wear any religious, political or philosophical symbols while on duty. In Achbita v G4S Secure Solutions NV, Ms Achbita worked for G4S in Belgium as a receptionist. She is Muslim and was dismissed after she informed G4S that she intended to wear a headscarf at work. 

She claimed religious discrimination. The Belgian Court asked the European Court of Justice (ECJ) for a ruling on whether a prohibition on a Muslim female employee wearing a headscarf at work constitutes direct discrimination. 

Advocate General's Opinion

The Advocate General considered that it does not. Direct discrimination occurs where a person is treated less favourably on account of religion. However, there was nothing to suggest that Ms Achbita had been treated less favourably than others by G4S’s decision to enforce its dress code. There was no discrimination against any one particular religious group or against religious individuals, as compared to non-religious individuals. Everyone was subjected to the dress code in the same way. The ban applied to all visible religious, philosophical and political symbols and was therefore neutral from the point of view of religion. The only difference in treatment the ban gave rise to was between employees who wished to give active expression to a particular belief (be it religious, political or philosophical) and those who did not, but this did not constitute less favourable treatment directly and specifically linked to religion. Ms Achbita had not therefore been treated less favourably on account of religion. 

The Advocate General went on to say that even if the ban did amount to direct discrimination, it could most likely be justified as a genuine and determining occupational requirement. Employers benefit from a fundamental freedom to run a business which must include the right to insist on compliance with a dress code. The ban was part of G4S’s policy of religious and ideological neutrality which was “absolutely crucial”, given the wide range of customers with which it dealt and the constant face-to-face contact employees had with external individuals. The ban therefore pursued a legitimate aim. It was also appropriate and necessary as no less intrusive way of achieving the same objective had been identified. 

However, the Advocate General considered that it was for the national court to determine whether the ban caused undue prejudice to the employees. The national court deciding this issue should take into account the size and conspicuousness of the religious symbol, the nature of the employee’s activity, the context in which she had to perform that activity and the national identity of the Member State concerned. The Advocate General considered that there was much to support the argument that the ban does not unduly prejudice the legitimate interests of employees and might therefore be regarded as proportionate. 

Implications

This case was only concerned with whether the ban on wearing religious, political or philosophical symbols at work constituted direct discrimination. The Advocate General considered that it did not because the policy was not linked directly and specifically to religion and instead also encompassed political and philosophical symbols. 

In the UK, the exception for genuine occupational requirements is more limited than under the European law and only applies where the protected characteristic, in this case, being of a particular religion, is a genuine occupational requirement. If the ban had been found to constitute direct discrimination, UK employers would not be able to rely on the genuine occupational requirement exception. 

The ECJ has yet to make its decision. Whilst it normally follows the Advocate General’s opinion it is not bound to do so. 

Although the dress code in this case was found not to be directly discriminatory, dress code requirements can also give rise to indirect discrimination claims. Employers with dress codes therefore need to consider whether their requirements have the potential to disadvantage employees sharing a protected characteristic and, if so, whether the requirements can be justified. This involves identifying the business reasons for the requirements and considering whether their objectives can be achieved by less discriminatory means.

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