Employment Law Case Update: Achbita and another v G4S Secure Solutions NV

The European Court of Justice has recently given judgment on two cases regarding claims of religious discrimination where employees refused to remove their Islamic headscarves.

In Achbita and another v G4S Secure Solutions NV, G4S had a code of conduct which stated that employees ‘are not permitted to wear any religious, political, or philosophical symbols while on duty’.  A was a receptionist for G4S and she wore an Islamic headscarf. She was dismissed in 2006 as she refused to remove her headscarf.  Her claim for wrongful dismissal and/or discrimination was dismissed and an appeal court referred the question to the ECJ.

The other case, Bougnaoui and another v Micropole SA, involved a design engineer, B, who when recruited was informed that she would not be able to wear her headscarf at all times due to the customer-facing nature of her role.  A customer complained that B had worn a headscarf and requested she not wear it in the future.  B refused to comply with this and was dismissed.  Again her claim for religious discrimination was dismissed and an appeal court referred the question to the ECJ.

The ECJ held that the internal rule in Achbita applied to any visible signs of political, philosophical or religious beliefs and would therefore treat all employees in the same way.  There was no evidence to show that the rule was applied differently to A than it was to other employees.  The ECJ held that the rule did not introduce different treatment directly based on religion or belief and so there was no direct discrimination.  However the ECJ did note that the rule could give rise to indirect discrimination.  The guidance given for national courts on this point is that if the employer’s wish is to project a neutral image, then as long as this is pursued in a consistent and systematic manner it would be a legitimate aim.

In Bougnaoui the ECJ noted it was unclear whether the employer did operate a neutral policy that applied to all manifestations of political, philosophical and religious belief.  If the dismissal of B was not based on such a general rule but purely on the unwillingness of a customer to be served by an employee wearing an Islamic headscarf the question of is there a ‘genuine and determining occupational requirement’ would need to be asked.  The ECJ held that this could not be relied on to justify direct discrimination.  It was held not to cover subjective considerations such as the employers taking into account the particular wishes of the customer.

This decision reminds us that it is important that any policies or codes of conduct are implemented consistently across the entire workforce to ensure there is no discrimination against one group of employees who possess a protected characteristic. 

ENDS

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