On 31 May, Attorney General Kokott gave her opinion in a
long-standing dispute which is headed to a final determination by
the European Courts of Justice. To summarise the facts: Ms Achbita,
who is of Muslim faith, wished to wear a religious headscarf at
work. G4S dismissed her because of its policy which prevents the
wearing of any religious, political and philosophical symbols at
work. The Belgian courts referred the matter to the ECJ seeking
clarification on the application of EU discrimination law on the
grounds of religion or belief in these circumstances.
The A-G has opined that there is no direct discrimination where
there is a general ban in the workplace from wearing such symbols,
so long as the ban does not treat one or more religion or religious
belief any less favourably than another and the ban is not based on
religious stereotypes or prejudices. While the A-G accepted that
there is an argument of indirect discrimination, she felt that this
could be justified if the employer has a legitimate policy of
ensuring religious and ideological neutrality. As to the question
of proportionality, the A-G stated that this will ultimately be a
decision for the Belgian courts taking into account all the
circumstances of the case. However, she believed that the ban would
not unduly prejudice the legitimate interests of the female
employees concerned and so the ban is proportionate.
This decision points towards employers being permitted to
prevent their employees wearing religious, political and
philosophical symbols at work, if they have a valid policy of
ensuring religious and ideological neutrality and this policy is
applied consistently regardless of the employee's faith.
However, we would always advise caution before adopting any such
policy as this is an area of law that is fraught with difficulty.
We must also remember that this is only the A-G's opinion, but
the ECJ usually follows this opinion when making its final
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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