Headscarf ban? CJEU say "yeah but no but yeah"
HEADING FOR A HEADSCARF BAN OR HEADING OFF RELIGIOUS DISRIMINATION?
In the case of Achbita v G4S Secure Solutions (CJEU C-157/15) the Court of Justice of the European Union held that an internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination.
A was a Muslim, who was employed as a receptionist by G4S. When she was recruited there was an unwritten rule within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. A informed her employer that she intended to wear an Islamic headscarf during working hours but G4S informed her that the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contracts with its customers. Subsequently G4S amended its workplace regulations to provide 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” (“the internal rule”). A was dismissed.
The CJEU made the somewhat obvious point that the internal rule was not direct discrimination, but could amount to indirect discrimination, if it was not justified. The Court held that the internal rule treated all employees in the same way by requiring them to dress neutrally. The internal rule did not introduce a difference of treatment that was directly based on religion or belief. The Court noted that it was not inconceivable that the national court might conclude that the internal rule introduced a difference of treatment that was indirectly based on religion or belief, if not objectively justified by a legitimate aim. The Court accepted that a policy of neutrality towards customers, if properly applied, was legitimate. When looking at whether the step taken was necessary and proportionate, the national court would have to consider whether the prohibition covered only G4S workers who interacted with customers, and whether it would have been possible for G4S to offer A a post not involving any visual contact with customers instead of dismissing her.
In the linked case of Bouganaoui and ADDH v Micropole Univers (CJEU C-188/15), B was dismissed from her role as a design engineer when a customer complained about her wearing an Islamic headscarf and B objected to being told not wear the headscarf in the future. The Court held that the willingness of an employer to take account of the wishes of a customer to no longer have the services provided by a worker wearing an Islamic headscarf could not be considered a genuine and determining occupational requirement.