Companywide Policies and Discrimination: The Headscarf Debate
You may have noted many articles in the media last week following the European Court of Justice’s judgement regarding the banning of headscarves in the workplace.
In this much reported Belgian case (Achbita v G4S Secure Solutions NV (Case C-157/15)), Ms Achbita, a practising Muslim who had a customer facing role, was dismissed by her employer for wearing her headscarf. G4S had a companywide policy which stated that employees were prohibited from wearing any visible signs of their political, philosophical or religious beliefs.
Feeling that she was facing direct discrimination, Ms Achbita then pursued a claim through the Belgian courts. It was the task of the European Court of Justice to determine whether the headscarf ban could be direct discrimination where the company dress code prohibited employees from wearing outward signs of political, philosophical or religious beliefs at work.
The legal definition of direct discrimination is:
Direct discrimination occurs where a difference in treatment which is not objectively and reasonably justified is directly based on sex, race, religion and belief, sexual orientation, age, disability, gender reassignment, marriage and civil partnership and pregnancy and maternity.
The European Court of Justice confirmed that banning the headscarf was not direct discrimination as Ms Achbita was treated no differently when compared with another worker. It is likely that a Christian wearing a visible crucifix or a Sikh wearing a turban would have also been told to remove such items.
The key statement from the European Court of Justice’s judgment was:
“….where the employer had a policy of upholding political, philosophical or religious neutrality in customer-facing roles, this must be considered a legitimate aim”.
The legal construction of the judgment is unsurprising as it reflects how the UK employment tribunal generally deals with companywide rules which may inadvertently, or at least not blatantly, discriminate against certain groups.
Both employers and employees need to be aware that such rules could be deemed to be indirect discrimination to certain groups, including religious groups such as Muslims. Indirect discrimination occurs when:
An apparently neutral provision, criterion or practice has a detrimental effect on persons to whom one of the above grounds of discrimination applies, unless that provision, criterion or practice is objectively and reasonably justified.
This case was also particularly interesting as although the European Court of Justice was not specifically asked to consider whether G4S’s policy could be indirect discrimination, it did comment that such a policy could be indirect discrimination if it could not be objectively or reasonably justified. It went onto say that decisions over whether a policy is justifiable would be something that would need to be considered by national court. Essentially the ECJ offered no comment or guidance on when a policy would be indirectly discriminatory or not.
So, in this instance if practicing Muslims are placed at a disadvantage by a companywide policy, and the policy cannot be justified, then they may have a claim for indirect discrimination. It is important for any employer or company who is thinking of introducing a similar policy to ban religious, political or philosophical clothes, garments, jewellery or other items can justify that policy. If they cannot then they could find themselves being sued for indirect discrimination.
This case is a timely reminder of how companywide rules are dealt with in respect of discrimination claims and therefore employers introducing any form of bans are advised to tread carefully.