Dress Code Banning Muslim Headscarf Justified?

In the case of Achbita and another v. G4S Secure Solutions NV [2016] CJEU C-157/15, the Advocate General has given her opinion on whether a private employer could prevent a female Muslim employee from wearing a headscarf at work.

The facts

Samira Achbita (Ms Achbita) worked for G4S Secure Solutions NV (G4S) as a receptionist. G4S operated a policy which prohibited employees from wearing any visible religious, political or philosophical symbols whilst at work. This policy was incorporated within their Code of Conduct. For the first three years of her employment, Ms Achbita only wore a headscarf outside of work hours, but she subsequently intended to also wear it at work. When she did so, Ms Achbita was dismissed for failing to follow G4S's dress code. Ms Achbita brought a claim for wrongful dismissal in Belgium, alleging direct discrimination.

Issue

The Belgian Labour Court dismissed Ms Achbita's claim and this decision was upheld on appeal. The Belgian Court of Cassation, which is currently considering Ms Achbita's further appeal, asked the European Court of Justice (ECJ) for a preliminary ruling on whether G4S's dress code policy was directly discriminatory under the relevant European Directive.

Although the question only referred to direct discrimination, the Advocate General suggested that the ECJ should consider both direct and indirect discrimination and any potential justifications available.

Advocate General's opinion

The Advocate General concluded that there was no direct discrimination, as Ms Achbita had not been treated less favourably. She reached this decision on the basis that G4S's policy was founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and, importantly, not on stereotypes or prejudices against one or more particular religions or against religious beliefs in general.

The Advocate General added that, if she was incorrect regarding direct discrimination, the ban on wearing a headscarf at work could be regarded as a "genuine determining occupational requirement" under article 4(1) of the Equal Treatment Directive (2000/78/EC). This was on the basis that G4S's objective was to enforce a legitimate policy of religious and ideological neutrality.

The Advocate General did indicate that the blanket ban imposed by G4S might constitute indirect discrimination. However, she also highlighted that indirect discrimination could be justified if the employer could...