Is a dress code ban which prevented a Muslim woman from wearing a headscarf at work discrimination?
In a recent case which has been referred to the European Court of Justice by the Belgian Courts the question of discrimination and dress code has been considered at length and provides some useful information to consider.
This case is one which is being dealt with by the Belgian Courts and they have referred the matter to the European Court of Justice for a decision on a point of law set out in the Equal Treatment Framework Directive.
The Equal Treatment Framework Directive provides a framework for equal treatment in employment which member states of the European Union are required to implement in National law. In the UK the principles are implemented into National law by the Equality Act 2010.
Article 4(1) of the Equal Treatment Framework Directive states that a difference in treatment based on a characteristic related to any of the protected grounds will not be direct discrimination where such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
The Equality Act 2010 provides a narrower exception which means the general occupational requirement exception is only available with regards to the nature or context of the work.
The employee in this case, Ms Achbita was employed by G4S Secure Solutions (G4S) in Belgium as a receptionist.
G4S had a policy across the board that employees in Belgium are not allowed to wear any religious, philosophical or political symbols whilst at work. The policy applied to all employees regardless of their religious views or requirements.
After working for G4S for 3 years Ms Achbita started to wear a headscarf to work stating that it was on the basis of her religious beliefs. Prior to this Ms Achbita had worn her headscarf outside of work but not whilst working.
When Ms Achbita refused to remove her headscarf at work G4S dismissed her and she pursued a claim for direct and/or indirect religious discrimination.
At the first tier of proceedings the Belgian Labour Court held that there has been no direct or indirect discrimination. The decision was then upheld on appeal and eventually the case made its way to the Supreme Court.
The Supreme Court of Belgium decided to refer the issue to the European Court of Justice to decide the issue of whether the headscarf ban amounted to direct discrimination under the Equal Treatment Framework Directive.
The decision I am reporting today is not the decision of the European Court but the opinion of the Advocate General.
The way that it works is that the Advocate General releases their opinion and generally, in most cases, the European Court of Justice will follow what the Advocate General has suggested. I will report and note the final decision of the European Court when it is published.
The opinion of Advocate General Kokott (the ‘AG’) provides guidance on several points of religious discrimination.
On first analysis a ban such as that implemented by G4S could be regarded as direct discrimination, however on closer look the AG decided that there was nothing to indicate that Ms Achibita had been treated less favourably than others who work for G4S. The dress code policy did not apply to a particular group or religion it applied across the board to all employees regardless of religious belief or not.
The dress code was general company policy and a business decision they had taken which was neutral from any religious of ideological belief. It did not constitute less favourable treatment that was specifically or directly linked to religion.
Because the dress code was capable of putting individuals of certain religions or beliefs at a disadvantage it could constitute indirect discrimination. As a result, the AG considered the argument of justification.
G4S occupational requirement was to ensure all staff were neutral and that their external appearance was standard. The AG decided that G4S requirement was a genuine and determining occupational requirement in accordance with the Equal Treatment Framework Directive.
The AG then went on to decide that G4S had a legitimate objective of their dress code and it was a proportionate means of achieving that objective.
Points to note
This case is interesting following a UK case involving British Airways (BA) in which an employee pursued discrimination claims through the UK courts as BA had a uniform policy which banned the employee from wearing a visible cross.
The Court of Appeal decided that it was not indirect religious discrimination, but the employee took the matter to the European Court of Human Rights who decided that the UK had failed to protect the employees right to manifest her religious belief.
There is also a similar case which the European Court are dealing with and which the outcome is expected.
Action to take
1) Ensure that you take advice before implementing any policies which could cause disadvantage to certain employees;
2) Think carefully about the reasoning and impact of any dress code policy you implement;
3) Try to be flexible in your application of the dress code policy, the more flexible you can be whilst still maintaining your business aims the less likely you will run into difficulties;
4) Ensure that you have an equality and diversity policy in place;
5) If you have any concerns about any issues raised by this case, please get in touch for some specific advice.
Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV – European Court of Justice