In Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, Samira Achbita, a Muslim, worked as a receptionist for G4S Secure Solutions, which provides security, guarding and reception services. G4S’ employee code of conduct includes a rule whereby employees are not permitted to wear any religious, political or philosophical symbols while on duty.  

Achbita observed the rule for three years, only wearing an Islamic headscarf outside working hours. She then announced that she intended to wear a headscarf while at work as well, for religious reasons. Management pointed out that this was at odds with their dress code rule aimed at achieving neutrality. When Achbita nevertheless confirmed her settled intention, as a Muslim woman, to wear the headscarf, she was dismissed.

A Belgian Court asked CJEU for a preliminary ruling as to whether the prohibition constituted discrimination contrary to EU law. Advocate General Kokott (AG) provided an opinion for consideration by the CJEU.

The dress code rule is applied consistently throughout G4S, whatever the religion. Therefore, prohibiting a female employee of Muslim faith from wearing an Islamic headscarf at work cannot constitute direct discrimination based on religion because all visible political, philosophical and religious symbols in the workplace are banned. The ban could just as easily affect, for example, a Jewish male who comes to work wearing a kippah, or a Sikh who wishes to perform his duties in a turban. So in like-for-like circumstances, everyone is treated in the same way.

The ban may, however, constitute indirect discrimination based on religion under Article 2(2) of the EC Equal Treatment Directive, but may be justified as legitimate ‘if’ it is a genuine and determining occupational requirement under Article 4(1) in order to enforce a policy of religious and ideological neutrality.  In the AG’s view, such a policy is essential at G4S, not only because of the variety of customers served, but because of the special nature of the work G4S employees do, which is characterised by constant face-to-face contact with external individuals, impacting not only on the image of G4S but also on the public image of its customers.

But while the AG took the view that the ban may be legitimate, it also has to be proportionate and ultimately it is for the Belgian Court to strike a fair balance between the interests of G4S and Achbita, taking into account all the relevant circumstances of the case, which in particular must consider the following: (i) the size and conspicuousness of the religious symbol; (ii) the nature of the employee’s activity; (iii) the context in which she has to perform that activity; and; (iv) the national identity of the Member State concerned.

As to proportionality, in the AG’s opinion, there is much to support the argument that a ban in such circumstances does not unduly prejudice the legitimate interests of employees and must therefore be regarded as proportionate. While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he or she may be expected to moderate the exercise of his religion in the workplace, in relation to religious practices, religiously motivated behaviour or clothing. 

The AG’s Opinion is not binding on the CJEU. The AG’s role is to propose a legal solution which the CJEU may or may not follow. While the AG has given her own views on legitimacy and proportionality, the CJEU may take an entirely different view. But whatever the outcome it would appear inevitable that the Belgian Court will have to assess whether the ban is proportionate. The Opinion is widely viewed as raising ‘problematical’ legal issues where indirect discrimination is concerned, not least of which is the application of EU law in respect of the Equality Act 2010 on the aspect of a genuine occupational requirement forming the basis of a legitimate aim where dress codes are concerned. Employers are advised to take legal advice in similar circumstances.

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.