EU headscarf ‘opinion’ problematic for UK courts
Legal view on Islamic dress at work case at odds with Eweida judgment
In the case Achbita v G4S Secure Solutions NV, an Advocate General (AG) of the Court of Justice of the European Union (CJEU) was asked by a Belgian court to give an opinion on whether banning a female Muslim employee from wearing a headscarf at work contravened EU law.
Achbita worked as a receptionist for G4S. The employee code of conduct did not allow staff on duty to wear religious, political or philosophical symbols, a rule which had been approved by the company’s works council. Achbita wore an Islamic headscarf outside work and, after obeying the dress code rule for three years, said she intended to wear a headscarf for religious reasons at work too. The company said this breached the code, but she confirmed her intention and was dismissed.
The European court was asked for a preliminary ruling on whether this was direct discrimination because of religion or belief contrary to EU law. However, the AG decided to give an opinion related to both direct and indirect discrimination as the outcome was likely to be “ground-breaking in the world of work throughout the EU.”
The opinion said this was not direct discrimination as the dress code rule was applied consistently across the company and could prevent a Jewish male worker from wearing a skullcap or a Sikh from wearing a turban, so everyone was being treated the same. It could, however, be indirect discrimination but the AG thought it may be justifiable under the equal treatment directive if it achieved the company’s legitimate aim of neutrality towards religions and ideologies which the company said was essential for both its own and its customers’ image.
Such a ban may be legitimate but it also has to be proportionate, and the Belgian court will have to strike a balance between the employee’s and the company’s interests, taking into account:
- the size and conspicuousness of the religious symbol involved
- the nature of the employee’s work activity
- the context in which that activity is performed
- the national identity of the member state concerned.
The AG thought such a ban could be proportionate. While employees could not leave their sex, skin colour, ethnicity, sexual orientation, age or disability “at the door” on entering their employer’s premises, they could be expected to moderate their religiously motivated behaviour or clothing in the workplace.
While the AG’s opinion is not binding on the CJEU, the points on indirect discrimination raise some practical issues in the UK.
In establishing a legitimate aim for indirect discrimination, the AG has linked it to the directive’s exception for occupational requirements. But the directive is clear that a religious dress ban would only satisfy the legitimate aim test if the occupational requirements are met. The latter allows for a difference in treatment ‘based on a characteristic’ related to religion. Any claims using this approach in the UK would have to rely directly on the directive, since the occupational exception under the Equality Act 2010 is for a person ‘to have a particular protected characteristic’. There is no such requirement in this case.
The AG’s guidance on proportionality factors is useful, but the national identity point means there may legitimately be greater restrictions on wearing religious symbols in a secular state – but the UK is not a secular state.
The proportionality test requires an assessment of whether the legitimate aim could have been achieved by less stringent means. In the AG’s view “more lenient” alternative solutions were not appropriate in this case, but the opinion does acknowledge that less intrusive but equally suitable alternatives for achieving the company’s objective had not been put before the Belgian court. The AG’s conclusion could be regarded as surprising in these circumstances. Employers defending similar claims would have to show that no alternative approaches would achieve the legitimate aim.
The AG referred to the right to show (manifest) a religion under the European Convention on Human Rights, and specifically to the Eweida case, where the European Court of Human Rights found the UK had failed to protect a worker’s right to manifest her religion when she was prevented from wearing a Christian cross while working for BA. The court found that although the airline’s aim of projecting its image was undoubtedly legitimate, the UK courts had given it too much weight in deciding there had been no discrimination, particularly as there was no evidence that wearing religious clothing or symbols had a negative impact on its brand.
Here the AG has decided that banning Islamic headscarves at work is essential, and therefore legitimate, to protect G4S’ and its customers’ image. This seems to be at odds with Eweida. If public image is so important, then employers will have to be able to produce persuasive evidence to support the argument.
Story via – http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/06/07/eu-headscarf-ruling-problematic-for-uk-courts.aspx