Employment Law Update - Dress code and religious discrimination

Published: 28/06/2016

The Advocate General has published her opinion on whether a Belgian company’s dress code banning the wearing of a Muslim headscarf while on duty amounted to direct or indirect discrimination on the grounds of religion or belief under the Equal Treatment Framework Directive.

Achbita and another v G4S Secure Solutions NV, ECJ

Facts
Ms A was employed as a receptionist by G4S. After three years of service, she indicated an intention to wear a headscarf during working hours for religious reasons. This was in contravention of the company’s uniform policy, which prevented employees from wearing any visible signs of their political, philosophical or religious beliefs while on duty. Ms A was subsequently dismissed and brought claims for religious discrimination against her employer, which were rejected by the Belgian Labour Court.

The Belgian Supreme Court referred the case to the European Court of Justice (ECJ), to determine the question of whether the headscarf ban amounted to direct discrimination based on religion or belief.

AG Opinion
The Advocate General (AG) has given her opinion that the dress code did not amount to direct discrimination based on religion or belief.

The ban was applied to all employees equally and was not based on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. It could potentially amount to indirect discrimination, but the AG considered that the indirect discrimination was capable of justification in order to achieve the employer’s desired objective of religious and ideological neutrality. The AG has suggested that the practice of religion is something over which an individual has an element of control (unlike other protected characteristics such as sex, colour or ethnic origin), and might therefore be expected to moderate the exercise or expression of their religion in the workplace.

Consequences

This is the first case of religious discrimination to be heard by the ECJ (the case of Eweida v British Airways plc concerning religious symbols and dress codes was heard by the European Court of Human Rights). The AG’s opinion draws a distinction between public and private manifestations of religious belief; a distinction that could be criticised as over-simplistic in practice.

It is important to note that the AG’s opinion is not binding on the ECJ, and the final ECJ decision might not reach the same conclusions. We will report the full decision as soon as it’s available.

The content of this article is for general information only. For further information regarding dress codes and religious discrimination, please contact a member of Birketts' employment team. Law covered as at June 2016.

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