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Headscarves and Religious Discrimination

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Does the banning of a headscarf at work constitute religious discrimination? No, at least not direct discrimination, held the Court of Justice of the European Union in Achbita v G4S

The ruling comes after courts in Belgium and France referred controversial domestic cases to Europe’s top court. The case considered what an employer should do if a third party objects to an employee wearing religious dress while working on a third party’s premises.

The case involved a Muslim receptionist who was permanently contracted out to work for a third party, which in this case was G4S. The Company operated a policy of banning wearing political, religious or similar signs. The Muslim employee announced she wanted to start wearing a headscarf and was told she could not. She refused to go to work without a headscarf and was ultimately dismissed. The Court of Justice of the European Union held that G4S’s policy did not amount to direct discrimination on grounds of religion because it prohibited all religious signs, so it was not treating one religion less favourably than another. It also held that G4S’s rule introduced a difference in treatment which was indirectly based on religion, as Muslims are placed at a particular disadvantage.

It held that an employer’s desire to project an image of neutrality was a legitimate aim provided it applied only to customer-facing employees, and more interestingly, left open the question of whether it would have been possible to redeploy Ms Achbita into a non- customer facing role rather than dismiss her. This is an interesting decision, but it will not mean UK businesses will be able to ban religious clothing in the workplace overnight. Implementing dress neutrality policies is extremely difficult and in most cases, not realistic in the modern workplace. Any organisation which wants to adopt such a policy must give serious thought to how it would be implemented and received by employees.

However this judgment provides welcome clarity that generic dress code rules do not amount to direct discrimination. However we are now left with the position that rules could amount to indirect discrimination. However, the test in any case will come down to the balancing exercise to see if those rules are justified.

In practice this decision is unlikely to take us any further than the position after the high-profile Eweida case in 2013, which concerned a dispute between British Airways and an employee over uniform policy.