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Direct discrimination?

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Direct discrimination?

Direct discrimination?

The European Court of Justice (“ECJ”) has ruled that a business’ internal policy which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination.

Facts:

Ms Samira Achbita was employed as a receptionist by G4S Secure Solutions on 12 February 2003. At the time of Ms Achbita’s recruitment, G4S had a policy, albeit unwritten, that in the workplace employees were prohibited from visibly wearing anything that portrayed their political, philosophical or religious beliefs.

Ms Achbita is a Muslim and in April 2006 she informed G4S that she intended to wear an Islamic headscarf at work. Ms Achbita was informed that this was contrary to G4S’ policy as the company operated a “position of neutrality” during all contact with customers. After a period of leave, Ms Achbita again informed G4S of her intention to wear the headscarf when she returned to work on 15 May.

On 29 May 2006 G4S’ works council approved an amendment to the workplace regulations which stated that “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”.

Ms Achbita was dismissed on 12 June 2006 for her continued persistence in wearing the headscarf to work. Ms Achbita brought a challenge against her dismissal in the Belgian Court, The Hof van Cassatie.

The Hof van Cassatie queried the interpretation of EU Directive 2000/78/EC, which establishes a general framework for equal treatment in employment and occupation. The Hof van Cassatie asked the ECJ for clarification as to whether Ms Achbita’s prohibition on wearing a headscarf at work constituted direct discrimination.

Ruling:

The ECJ noted that the principle of equal treatment means that there should be no direct or indirect discrimination on the grounds of religion. Although there is no definition of religion in the directive, the ECJ recognised that in accordance with the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, ‘religion’ includes both having religious beliefs and the manifestation of those beliefs in public.

The ECJ found that G4S’ policy against wearing visible signs of political, philosophical or religious beliefs in the workplace is applied to all employees in the same way, regardless of their beliefs. Such a policy therefore did not cause a difference of treatment based directly on the grounds of religion or belief and so Ms Achbita was not the subject of direct discrimination.

The ECJ noted that G4S’ policy could, however, indirectly discriminate if it could be proven that persons adhering to a particular religion or belief are placed at a particular disadvantage because of the policy. Such a policy would not amount to indirect discrimination if the policy could be objectively justified and if it could be shown that the policy was:

  • put in place for a legitimate aim; and
  • the means used to achieve the legitimate aim are appropriate and necessary.

The question will therefore be referred back to The Hof van Cassatie for the Belgian Court to determine whether, and to what extent, the policy can be objectively justified and whether the steps taken by G4S were appropriate and necessary.

For more information contact our employment team on 0345 070 6000.