Religious discrimination – don’t believe everything you read in the papers……
Recent press reports have been saturated with coverage of the Advocate General’s opinion in the case of Achbita and another v G4S Secure Solutions NV.
The case concerns the Belgian arm of G4S’s decision to dismiss Ms Achbita (a female Muslim receptionist) after she had made it clear that she intended to start wearing an Islamic headscarf to work. Ms Achbita had previously complied with an unwritten rule (applicable to all Belgian G4S employees) which outlawed the wearing of any religious, political or philosophical symbols whilst on duty.
Following her dismissal, Ms Achbita commenced legal proceedings in Belgium alleging that her dismissal contravened Belgium’s anti-discrimination legislation. Ms Achbita’s case was supported by the Belgian organisation known as ‘the Centrum' (which campaigns for equal opportunities and against racism).
Ms Achbita’s claims were initially unsuccessful and so she appealed to the Belgian Court of Cassation; that Court decided to stay Ms Achbita’s claim and ask the European Court of Justice ("ECJ") to make a preliminary ruling in order to clarify the prohibition under EU law of discrimination on the grounds of religion or belief.
A reference for a preliminary ruling allows the courts and tribunals of EU Member States to refer questions to the ECJ concerning the correct interpretation of EU law. However, the ECJ does not decide the dispute itself – that’s left to the national courts.
As part of this process an initial legal opinion is given by a qualified lawyer known as an Advocate General. In many cases the Advocate General’s opinion will be influential and is often followed by the ECJ. However, the Advocate General’s opinion is not binding upon the ECJ.
The Advocate General’s opinion
Direct discrimination - A key issue that the Advocate General had to grapple with concerned whether an employer’s decision to ban a female employee of Muslim faith from wearing a headscarf to work could be said to constitute direct discrimination based on religion in circumstances where that ban had been founded on a general company rule prohibiting visual political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general.
Remember, in the UK direct discrimination takes place where, because of a protected characteristic, a person (A) treats another (B) less favourably than A treats or would treat others.
The Advocate General found that G4S’s practice of banning all political, philosophical and religious symbols does not constitute direct discrimination based on religion because it applies to all political, philosophical or religious symbols without distinction. In arriving at this conclusion the Advocate General stated that:
"…..a company rule such as that operated by G4S could just as easily affect a male employee of Jewish faith who comes to work wearing a kippah, or a Sikh who wishes to perform his duties in a Dastar (turban), or male or female employees of a Christian faith who wish to wear a clearly visible crucifix or a T-shirt bearing the slogan 'Jesus is great' to work."
In arriving at her opinion the Advocate General acknowledged that previous EU cases have tended to find direct discrimination exists where an individual’s treatment is directly linked to a protected characteristic. However, in the present case the Advocate General saw fit to distinguish between the protected characteristic of religion and other protected characteristics such as gender, age, race or sex which are immutable and in some sense fixed and/or involuntary.
It will be interesting to see if the ECJ decides to accept this distinction and also whether it shares the Advocate General’s view that even if the rule did constitute direct discrimination that that discrimination could be justified on the grounds that a policy of religious neutrality constituted a genuine occupational requirement.
Indirect discrimination - The Advocate General’s opinion made it clear that a general workplace ban on the wearing of religious, political or philosophical symbols may constitute indirect discrimination based on religion. However, this finding has not been widely reported by the media and press.
Indirect discrimination occurs where A applies to B an apparently neutral provision, criterion or practice ("PCP") that A would apply equally to others, but which puts or would put those who share B's protected characteristic at a particular disadvantage.
It is important to note that it is possible for employers to justify indirect discrimination on the grounds that the relevant PCP can be objectively justified. In her opinion the Advocate General stated that the PCP could be objectively justified on the grounds that a policy of religious neutrality was essential to G4S given the special nature of the work carried out by its employees and also because it was important that neither G4S or the clients to whom it provides its services were perceived as supporting and/or sharing the religious, political or philosophical views of its employees. Ultimately however and notwithstanding the ECJ’s judgment when it arrives, the issue of whether or not the PCP operated by G4S can be justified will be remitted to the Belgian court to decide.
Employers need to appreciate and understand that the Advocate General’s opinion is not legally binding and that we will not know whether the ECJ agrees in whole or in part with the opinion until it delivers its own ruling later on this year. Consequently, headlines in the media such as the"Bosses CAN ban Muslim headscarves from the workplace" are misleading. Moreover, whilst the ECJ’s ruling, when it comes, will offer useful guidance to UK employers it is important to remember that the principle of objective justification is case specific and that what can be justified in one case will not necessarily be justified in another.
In short, the ECJ is not about to propagate a Europe wide rule allowing employers to place an outright ban on the wearing of religious, political or philosophical symbols. Whatever the outcome of this case, UK based employers will need to continue to respect the right of individual employees to adhere to a particular set of religious, political or philosophical beliefs and to think very carefully before imposing rules that limit the ability of those employees to wear clothing or other garments that give expression to that belief.
Many employers will wish to pursue an active policy of promoting a diverse workforce, placing restrictions on the wearing of religious garments or symbols in circumstances where those restrictions can only be justified for health and safety reasons or for other legitimate reasons that do not prohibit the visible expression of a particular set of religious or philosophical beliefs altogether. It may be argued that this type of policy will result in a workforce that is generally representative of the customer base that it serves and ultimately that it will be of benefit to the employer for that reason.
Finally, it is interesting to note that G4S in the UK seems to be trying to put some distance between itself and the Advocate General’s opinion with the Guardian Newspaper reporting a G4S spokesman as saying "…..The recent opinion issued by the advocate-general in a case in Belgium will not affect our UK business."
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.