In Achbita and another v G4S Secure Solutions NV the Advocate General considered whether a Belgian company’s dress code banning the wearing of a Muslim headscarf while on duty amounted to direct or indirect discrimination. 

Facts 

Ms Achbita was employed by G4S in 2003 as a receptionist working in Belgium. Employees were not allowed to wear any religious, political or philosophical symbols while on duty. Initially, this was an unwritten company rule, but in June 2006 it was included in the G4S employee code of conduct. 

A row arose in 2016 when Ms Achbita made it clear that she intended to wear a headscarf during working hours for religious reasons (she had previously only worn her headscarf outside working hours). She was then dismissed for her refusal to comply with the company’s dress code. 

Her initial claims to the Belgian Labour Courts failed on the basis of a finding that there had been no direct or indirect discrimination on the grounds of her religion or religious beliefs. The case was then referred to the ECJ and the Advocate General has now given an opinion. 

Decision 

The Advocate General has held that the dress code which included a ban on the wearing of headscarves does not amount to direct or indirect discrimination based on religion or belief. 

In the AG’s view, a direct discrimination claim could not succeed because the claimant’s dismissal was not because she was a Muslim. Everyone within the company was subject to the dress code in the same way and the ban applied to all visible religious and philosophical symbols. The AG gave the example of an employee of Jewish faith who comes to work wearing a kippah (skull cap), a Sikh who wishes to perform his duties in a turban, or employees of Christian faith who wish to wear a clearly visible crucifix. All of these employees would be treated in the same way under the dress code. 

However it was accepted that the dress code could amount to indirect discrimination as it places those of certain religions at a disadvantage. Nonetheless, the Advocate General felt that requiring employees to dress in a neutral way in circumstances where they come into regular contact with the public could be justified and hence be lawful. 

Comment 

The case (which should be remembered is not binding, either on the ECJ or national courts) has surprised many commentators in that it fails to address the disproportionate impact such a blanket ban will have on certain religions (and those that practice those religions) which have visible items of dress or adornment that are considered ‘mandatory’ or more closely intertwined with their faith. 

It has also raised some eyebrows that a desire to promote neutrality as part of a corporate brand in these circumstances was accepted as being a potentially legitimate aim for employers.  This is at odds with previous comments from the ECJ, specifically the case of Eweida v British Airway where Mrs Eweida succeeded in her claim before the ECJ over the wearing of her crucifix at work in similar circumstances. This case appears to be directly at odds with that decision. 

It appears that if the decision is followed by the ECJ, a blanket ban on wearing religious items for staff in a public facing role would be lawful. In the meantime, caution is advised and any form of ban on the wearing of religious items (expect perhaps for health and safety reasons) should be considered very carefully indeed.