"Is a private employer permitted to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace? And is that employer permitted to dismiss her if she refuses to remove the headscarf at work?"
These are essentially the questions which the Court of Cassation in Belgium referred to the European Court of Justice where the judges are assisted by Advocates General ("AG"). AG's are responsible for presenting a legal opinion on the cases assigned to them before the judges deliberate and deliver their judgment. In an opinion delivered on 31st May, AG Kokott has said that a decision taken by Belgian security company G4S to ban the wearing of headscarves in the workplace could not amount to direct discrimination.
G4S' employee code of conduct (approved by their works council) states that employees 'are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them.' Based on this, G4S dismissed a receptionist – a Muslim woman who wore a headscarf and did not remove it during working hours. AG Kokott said direct discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation on account of religion. Given that G4S' ban applied to all religious symbols, without distinction, and extended to political and philosophical symbols, AG Kokott held there was no discrimination between religions. He said "after all, a company rule such as that operated by G4S could just as easily affect a male employee of Jewish faith who comes to work wearing a kippah, or a Sikh who wishes to perform his duties in a Dastar (turban), or male or female employees of a Christian faith who wish to wear a clearly visible crucifix or a T-shirt bearing the slogan 'Jesus is great' to work."
AG Kokott did acknowledge however that the position would be different if a ban such as the G4S one was based on stereotypes or prejudice in relation to one or more specific religions or religious beliefs in general.
As far as indirect discrimination is concerned, AG Kokott considered that such a policy could be indirectly discriminatory. However, he considered it relevant that employers should benefit from a fundamental freedom to run a business which includes the right to determine how roles are carried out and to insist on compliance with a dress code as part of company policy. Here, G4S clearly had a policy in place that placed the receptionist at a disadvantage, as a Muslim woman who wanted to wear a headscarf. However, AG Kokott said that the headscarf ban was part of G4S's policy of religious and ideological neutrality, which was 'absolutely crucial' given the wide range of customers which it dealt with. The policy was said to therefore pursue a legitimate aim, namely a policy of neutrality and the ban was therefore proportionate. Generally he said that the following factors should be looked at when considering such policies:-
- the size and conspicuousness of the religious symbol;
- the nature of the employee's activity;
- the context in which she has to perform that activity; and
- the national identity of the Member State concerned.
This is an interesting opinion and further instance where the courts have to balance the needs of employees and employers. It is worth bearing in mind that AG Kokott's opinion is advisory only and does not bind the Court, but it is likely to be influential going forward. We will update you when the final decision in this case is made.
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
