Those of you who attended our last Employment Law Update in September 2016 might recall the case of Achbita v G4S Secure Solutions which concerned the ability of employers to ban religious dress in the workplace and the discrimination risks associated with that approach. The case was finally concluded today and the European Court of Justice (ECJ) held that the internal rule which prohibited the visible wearing of any political, philosophical or religious sign was not directly discriminatory.
The case concerned a Belgian employee of G4S, a company which applied a policy of ‘political, philosophical and religious neutrality’ across the board due to the broad spectrum of clients for whom they provided services. Therefore all employees were forbidden from wearing visible signs of their religious beliefs and Ms Achbita was dismissed because of her continuing insistence on wearing an Islamic headscarf at work. She decided to challenge this decision in the Belgian courts.
The case reached the ECJ which had to determine whether the employer’s ban on religious dress was consistent with the principles enshrined in the Equal Treatment Directive. Before a case like this is heard by the ECJ, an Advocate General will give an opinion to assist the court, although the court is does not have to agree with it. Back in May 2016, Advocate General Kokott opined that a ‘neutral’ policy such as this which applied equally to those of all faiths did not amount to direct discrimination. However, she acknowledged that such a policy could amount to indirect discrimination and suggested that, if that were the case, it could be justified as a proportionate means of achieving a legitimate aim.
To understand the difference we need to get a bit technical, so bear with me. Direct discrimination happens when an individual is treated differently because of a particular protected characteristic (e.g. race, religion, disability etc). A claimant must be able to show that they were treated differently compared to an actual or hypothetical person who doesn’t have that characteristic. Indirect discrimination is different. It involves a neutral policy or practice which puts a particular group of people with a protected characteristic at a disadvantage. The key difference here is that this can be justified, whereas direct discrimination cannot.
Ms Achbita did not claim that the policy was indirectly discriminatory, only that it was directly discriminatory. In today’s judgment, the ECJ followed the Advocate General’s opinion and concluded that the rule treats all employees in the same way by requiring them all to dress neutrally. In other words, Ms Achbita couldn’t point to another employee who was being treated differently to her, which is a fundamental part of a direct discrimination claim. Accordingly, the Court concluded that such a rule does not introduce a difference of treatment that is directly based on religion or belief.
Although the ECJ was not asked to consider indirect discrimination, it did give guidance about whether such a policy would be indirectly discriminatory; in particular whether this could be justified. It agreed with the Advocate General and held that such a rule was capable of causing a difference in treatment which was indirectly based on religion or belief. Such a difference would not, however, amount to indirect discrimination where the employer could show that it was justified.
This is where things start to get interesting from a British perspective. The ECJ suggested that an employer’s desire to project an image of neutrality could be legitimate, particularly where it only applies to workers in customer-facing roles. Furthermore, it suggested that the ban on wearing visible signs of political, philosophical or religious beliefs could be proportionate and appropriate to ensure that the policy of neutrality is properly applied.
However, this decision was made in the context of Belgian employment law and Belgium, along with some other European countries, has a cultural history of neutrality which permeates into the provision of services. In Britain, we do not have such a cultural history and therefore it is debatable whether such a rule could be justified here. The ECJ went on to say that, in conducting their assessment, national courts should establish whether the employer has a general and undifferentiated policy of neutrality and whether they had considered redeploying the employee to a non-customer facing role prior to dismissal, for example.