The European Court of Justice ruled Tuesday that employers may ban headscarves or burkas in the workplace.
“An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination,” ruled the ECJ, noting, “However, in the absence of such a rule, the willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf cannot be considered an occupational requirement that could rule out discrimination”
On February 12, 2003, Samira Achbita, a Muslim, was employed as a receptionist by G4S, a private undertaking which provides, inter alia, reception services for customers in both the public and private sectors. At the time of Ms Achbita’s recruitment there was an unwritten rule within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace.
In April 2006, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, the management of G4S informed her that the wearing of the headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers. On May 12, 2006, after a period of absence from work due to sickness, Ms Achbita notified her employer that she would be returning to work on May 15 and that she would in future be wearing the Islamic headscarf.
On May 29, 2006, the G4S works council approved an amendment to the workplace regulations, which came into force on June 13, 2006. These provided 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’. On June 12, 2006, Ms Achbita was dismissed because of her continuing insistence on wearing the Islamic headscarf at work. She challenged that dismissal in the Belgian courts.
The Hof van Cassatie (Court of Cassation, Belgium), before which the matter was brought, queried the interpretation of the EU directive on equal treatment in employment and occupation. In essence, it wished to know whether the prohibition on wearing an Islamic headscarf, which arises from a general internal rule of a private undertaking, constitutes direct discrimination.
In its judgment today, the Court of Justice noted first of all that, under the directive, the ‘principle of equal treatment’ means that there is to be no direct or indirect discrimination whatsoever on the grounds, inter alia, of religion.
Although the directive does not include a definition of ‘religion’, the EU legislature referred to the European Convention on Human Rights (ECHR) and to the constitutional traditions common to the Member States, which have been reaffirmed in the Charter of Fundamental Rights of the European Union. Therefore, the concept of religion must be interpreted as covering both the fact of having religious belief and the freedom of persons to manifest that belief in public.
The Court of Justice found that G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction. The rule thus treats all employees of the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally. It is not evident from the material in the file available to the Court that that internal rule was applied differently to Ms Achbita as compared to other G4S employees, the Court said, accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive.
The Court noted that it is not, however, inconceivable that the national court might conclude that the internal rule introduces a difference of treatment that is indirectly based on religion or belief, should it be established that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage.
Nevertheless, such a difference of treatment would not amount to indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary. While emphasizing that the national court hearing the case has sole jurisdiction to determine whether, and to what extent, the internal rule meets those requirements, the Court of Justice provides guidance in that respect.
It states that an employer’s desire to project an image of neutrality towards both its public and private sector customers is legitimate, notably where the only workers involved are those who come into contact with customers. That desire relates to the freedom to conduct a business, which is recognized in the Charter.
In addition, the ban on the visible wearing of signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner. The national court must ascertain whether G4S had, prior to MsAchbita’s dismissal, established a general and undifferentiated policy in that respect.
In this instance, it is also necessary to ascertain whether the prohibition covers only G4S workers who interact with customers. If that is the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued.
It should also be ascertained whether, taking into account the inherent constraints to which the undertaking is subject, and without G4S being required to take on an additional burden, it would have been possible for G4S to offer Ms Achbita a post not involving any visual contact with those customers, instead of dismissing her.
The Court therefore concluded that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of the directive.
By contrast, such a prohibition may constitute indirect discrimination if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage. However, such indirect discrimination may be objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary. It is for the Belgian Court of Cassation to check those conditions.