So I can ban the hijab at my workplace, can I?
On 14 March 2017, the day the European Court of Justice (ECJ) published its ruling in the case of Achbita v G4S Secure Solutions NV , the Daily Mail carried the following headline:
"Bosses can ban workers from wearing Islamic headscarves or other religious symbols, EU's top court rules."
Once again, the urgent need for a snappy and eye-catching headline misrepresents what a court judgement has actually said. Take the Daily Mail at its word and you could be heading for trouble.
It is fair to say that some employment lawyers have been surprised by the Achbita decision and opinion is divided as to the extent to which it will see a change in English law.
Ms Achbita worked as a receptionist for a G4S company in Belgium. The fact that she was client facing was significant. The G4S rulebook stated "employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them."
The company dismissed Ms Achbita when she indicated that she would continue to wear an Islamic headscarf during working hours, for religious reasons.
Cases are referred to the European Court when a national court needs a ruling on a matter of interpretation of an EU directive. Put simply, such a directive sets out the principle that member states should adopt in their own legislation but, by and large, leaves the detail to the state in question.
The actual question that the Belgian court needed answering was whether a blanket ban on the visible wearing of any political, philosophical or religious sign in the workplace constituted direct discrimination, prohibited by the 2000/78 Equality Directive.
As it happens, the ECJ answered that question in short order. The answer was no. The rule that applied to everyone, regardless of their religion and so could not be directly discriminatory by reason of that religion. (Although it would be direct discrimination just to ban only Islamic headscarves, despite what the Daily Mail headline says, since the rule would affect only Muslims.)
Instead of leaving it there, the EU went on to offer some (perhaps less than helpful) guidance in cases of indirect discrimination.
Indirect discrimination arises where an apparently neutral provision, criterion or practice (such as a ban on all religious symbols, applicable to all religions) has a detrimental effect on persons on the ground of their religion or belief unless that provision, criterion or practice is objectively and reasonably justified as being a proportionate means of achieving a legitimate aim.
The ECJ noted that Article 16 of something called the Charter of Fundamental Rights of the European Union recognised "the freedom to conduct business in accordance with union law and national laws and practices."
The ECJ stated that an employer's wish to project what it described as “an image of neutrality towards customers” related to that Article 16 freedom and, it said "is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer's customers." This therefore amounted to a legitimate aim.
As to whether the means of achieving that aim was proportionate, somewhat controversially, the ECJ said "as regards… the appropriateness of an internal rule such as that at issue… it must be held that the fact that workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that the policy is genuinely pursued in a consistent and systematic manner." Note the “must”. On the face of it, if the employer is “consistent and systematic” in banning religious symbols (presumably affecting all religions) then he can argue that, in the view of the ECJ, he will not have discriminated.
If the judgement stopped there then then the Daily Mail headline might just about stand, albeit if the word "or" were replaced by the word "and". However, the ECJ went on to muddy the waters.
It stated that "it must be determined whether the prohibition is limited to what is strictly necessary" (my emphasis) and then went on "what must be ascertained is whether the prohibition on the visible wearing of any [religious] sign or clothing… covers only G4S workers who interact with customers. If that is the case the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued." (My emphasis again.)
The ECJ then threw it back to the Belgian court to ascertain whether "taking into account the inherent constraints to which [G4S] is subject, and without G4S being required to take on an additional burden, it would have been possible for G4S, faced with such a refusal, to offer her a post not involving any visual contact with those customers, instead of dismissing her."
So Ms Achbita may yet win compensation, if the Belgian court thinks that G4S might perfectly well have offered her a role her away from the reception desk.
I am not sure that this case will have much effect on the way in which English employment tribunals operate. A blanket ban on religious symbols is clearly capable of amounting to indirect discrimination on the grounds of religion and will be unlawful unless the tribunal concludes that the ban amounted to a proportionate means of achieving a legitimate aim. Where the opportunity exists to relocate affected staff or make some other adjustment, a failure to do so might render the blanket ban disproportionate.
The line taken by the ECJ is perhaps surprising, in the light of the 2010 case of Eweida v British Airways. Ms Eweida worked on the BA check-in desk and breached its uniform policy by wearing a plain silver cross over her uniform. There was a stand off in that she refused to come to work without displaying her cross. BA refused to pay her. She claimed direct and indirect discrimination. She lost and took her case to the European Court of Human Rights (ECHJ, not the ECJ).
The ECHJ found in her favour, maintaining that the right to manifest her religious belief contained in Article 9 of the European Convention on Human Rights (ECHR) had been breached because Ms Eweida's cross was discreet, would not have detracted from her professional appearance, would not have encroached on the interests of others nor would it have a negative impact on BA's brand.
You might be forgiven for thinking that the Achbita judgement seems to suggest that Article 16 of the Charter trumps Article 9 of the ECHR. Confusing? You bet. Do not expect Brexit to make things any clearer and think carefully before acting on the Daily Mail headline.