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Prohibition on wearing a headscarf does not constitute direct discrimination

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The Advocate General’s Opinion in Achbita v G4S Secure Solutions NV has just been published and suggests that the prohibition on wearing a headscarf where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical or religious belief will not constitute direct discrimination under the EU Employment Equality Directive.  

This is subject to the proviso that the ban is based on a general company rule which prohibits political, philosophical and religious symbols from being worn visibly in the workplace, and not on stereotypes or prejudices against one or more particular religions or against religious beliefs in general.

In Achbita, a Muslim receptionist who was contracted out to work for a third party informed her employer, G4S, that she was going to begin wearing a headscarf in the workplace.  G4S informed her that the wearing of any visible religious symbols was contrary to its “strict neutrality” rule in the workplace.  The receptionist was dismissed as a result of her refusal to go to work without a headscarf.

She brought a discrimination claim and Belgium’s labour appeal court sought guidance from the Court of Justice of the European Union (CJEU) on whether or not a rule forbidding all staff from wearing any visible political or religious symbols could lead to direct discrimination against Muslims who wish to wear a headscarf at work.

It’s worth noting that a ban on wearing outward signs of political, philosophical or religious belief may constitute indirect discrimination, but may be capable of justification as a means of enforcing a legitimate policy of religious and ideological neutrality pursued by the employer, though any such policy must be proportionate.  Factors such as the size and conspicuousness of the religious symbol, the nature of the employee’s activity and the context in which the employee’s activity is performed should be taken into account.

Individuals have the right to manifest their religious beliefs under the European Convention on Human Rights.   An interference with this right was demonstrated in Eweida and others v United Kingdom where the UK was held to have failed to protect Ms Eweida’s right to wear a discrete cross outside her uniform.  Interestingly this failure did not extend to Mrs Chaplin, a nurse who wished to wear a crucifix at work, on the basis that her employer’s restrictions were in place to protect the health and safety of nurses and patients and so were not disproportionate.

While employers will be reassured by the stance of the Advocate General, there is still the possibility that individuals will rely on Eweida to bring a claim that their employer has interfered with their right to manifest their religious beliefs. The CJEU won’t necessarily agree with the Advocate General’s Opinion, and the issue will only be finally resolved when it has handed down its decision.

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