Headscarf Ban Wasn’t Direct Discrimination
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Achbita v G4S Secure Solutions
Do you remember the case of Samira Achbita? She was the Muslim employee of G4S, dismissed after insisting on wearing a headscarf to work. Wearing the headscarf went against the company’s ‘neutrality’ policy – in effect, no one was allowed to wear any visible sign of political, religious or philosophical belief while at work.
The Court of Justice of the European Union (CJEU) has now given its judgment. It is not direct discrimination to prohibit the wearing of a headscarf where that prohibition comes from an internal rule that does not allow workers to wear any political, philosophical or religious sign in the workplace. Ms Achbita was not treated differently; all employees were required to dress neutrally.
But, it might be indirect discrimination. That is if the rule puts people of a particular religion or belief at a particular disadvantage. An employer may be able to justify the discriminatory treatment by showing that they are pursuing, in an appropriate and necessary way, a legitimate aim – for example, political, philosophical or religious neutrality in its relations with customers.
The CJEU gave some guidance on this:
– An employer can legitimately aim to project an image of neutrality towards its customers where the only workers involved are those who come into contact with customers.
– It is ok to ban the visible wearing of signs of political, philosophical or religious beliefs in order to ensure that a neutrality policy is properly applied if that policy is genuinely pursued consistently and systematically.
It is for the national court to establish if G4S had established a general and undifferentiated policy, and if the company’s ban only covered customer-facing workers (in which case the ban would have to be strictly necessary in order to achieve the aim). It will also be important to establish whether or not G4S could have offered Ms Achbita a job that did not involve visual contact with customers, rather than dismissing her.
Headscarf Decision #2
Bougnaoui and another v Micropole SA
On the same day as Achbita, the CJEU decided another case about headscarves.
Ms Bougnaoui, a Muslim, was employed in a customer-facing role. A customer complained to the company about Ms Bougnaoui wearing her headscarf while on a site visit. She was eventually dismissed for continuing to wear it.
The CJEU considered whether, if Ms Bougnaoui had been discriminated against, that treatment could be justified by the ‘genuine occupational requirement’ defence. Could an employer’s willingness to take account of the wishes of a customer no longer to have services delivered by a worker who wore a headscarf be considered to be genuine and determining occupational requirement?
The answer is no. Where a customer has said that they don’t want to work with someone who wears a headscarf, that does not amount to an occupational requirement. A genuine occupational requirement is objective; it’s about the essentials of the job and the way it is carried out. Taking account of this sort of objection from a customer introduces subjectivity. And dismissing a worker for refusing to remove her headscarf in these circumstances would be direct discrimination.