Two highly anticipated cases involving the legality of banning
headscarves in the workplace were decided by the ECJ this week.
Achbita and anor v. G4S Secure Solutions NV (Case
C-157/15) involved a company that provided security, guarding and
reception services. The employee handbook stated that employees
were not permitted to wear any religious, political or
philosophical symbols while on duty. An employee, after three years
of working for the company, decided that she wanted to start
wearing a headscarf. The employee was eventually dismissed for
refusing to remove the headscarf.
Bougnaoui and anor v. Micropole SA (Case C-188/15)
involved an IT engineer who was told by her employer that she would
not be able to wear her headscarf at all times. There was not,
however, a blanket prohibition on the wearing of visible signs of
political, philosophical or religious belief. The employee went on
a site visit and wore a headscarf. The customer complained to the
company about the fact that she had worn a headscarf and requested
that she did not do so in the future. The company raised this issue
with the employee; however, the employee refused to comply with the
customer's request. She was then dismissed.
The ECJ held:
In relation to a blanket
that a company rule prohibiting the
wearing of visible signs of political, philosophical or religious
belief without distinction is not directly discriminatory;
that such a blanket prohibition may
give rise to indirect discrimination but this may be objectively
justified by an employer's policy of neutrality; and
that the policy of neutrality was an
objective justification only if it applied solely to
Where there is no blanket
if in response to a customer
complaint about the wearing of a headscarf an employer bans the
wearing of headscarves, this will be discrimination; and
such discrimination will not be
capable of being justified on the basis of a "genuine and
determining occupational requirement" under Article 4 of the
EU Equal Treatment Framework Directive.
There has been much press commentary on these cases. This has
included criticism that these cases could cause confusion as to
which religious symbols can be worn at work, particularly when the
judgment is contrasted with findings in the European Court of Human
Rights that allowed the wearing of crosses at work. An additional
complexity for the UK is that, with Brexit looming, the status of
such case law in the longer term is uncertain. However, what is
clear is that these cases highlight the need for companies to
carefully consider their approach to the wearing of visible signs
of political, philosophical or religious beliefs and the need to
ensure that any polices they apply that restrict such wearing are
strictly necessary. Clearly a balance needs to be struck between
employees' religious freedoms and legitimate business aims.
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