As Amanda Trewhella,Employment Department Solicitor at Child & Child explains the more controversial opinion was delivered on 31 May 2016 in relation to the Belgian case of Achbita and another v G4S Secure Solutions NV C-157/15 where the Attorney General’s opinion was that a dress code which banned the wearing of Islamic headscarves by its employees was not religious discrimination.
The case was brought by Ms Achbita, a Muslim employee who worked as a receptionist for G4S in Belgium. At the time G4S had a policy banning the wearing of any religious, political or philosophical symbols while working, which Ms Achbita was aware of.
When she started her role in 2003 Ms Achbita only wore her headscarf outside of working hours but in 2006 she informed her employer that in future she intended to wear a headscarf at work, for religious reasons. When it was pointed out to her by management that this was in contravention of the neutrality sought in their dress code policy and Ms Achbita refused to comply with the policy, she was dismissed.
Ms Achbita was unsuccessful in her claims for direct and indirect discrimination in the Belgian labour courts and the case has been appealed to the European Court of Justice.
The opinion of the Advocate General in this case was that the dress code did not amount to direct religious discrimination and that, even if it did, the policy could be justified as a genuine and determining occupational requirement.
The main reason for this opinion seems to be the fact that G4S’s policy of neutrality had universal application and did not affect one religious group more than another, and would equally apply to employees with political or philosophical beliefs who wanted to wear a particular symbol or slogan on their clothing.
Also, the fact that Ms Achbita was prepared not to wear her headscarf at work for three years may have worked against her.
The second case upon which the Attorney General delivered an opinion on 13 July 2016 relates to the French case of Bougnaoui and anor v Micropole SA C-188/15.
Ms Bougnaoui, a muslim woman, worked as a design engineer for Micropole. Before she started her role, her employer informed her that due to the customer facing nature of her role, both internally and externally, she would not be able to wear her headscarf at all times. After a site visit a customer complained that Ms Bougnaoui had worn a headscarf at their premises which had apparently embarrassed their employees and they asked that she did not do so in future. Micropole raised this issue with Ms Bougnaoui but she refused to comply with the customer’s wishes and so they dismissed her.
Ms Bougnaoui was unsuccessful in her claim for religious discrimination in the French labour courts and this case has also been appealed to the European Court of Justice.
The opinion of the Attorney General was that Ms Bougnaoui’s dismissal was an act of direct discrimination. In this case it was not clear whether the company had imposed a ban only on the Islamic headscarf, or on all religious signs or clothing when attending a customer’s premises and in this respect it differs from the previous case. However, the Attorney General states that it was clear that Ms Bougnaoui’s dismissal was linked to the prohibition of the wearing of religious clothing and was therefore discriminatory.
When considering whether the policy could be justified by Micropole as a genuine and determining occupational requirement, the Attorney General stated that this defence must be interpreted strictly and only used in limited circumstances. This could include, for example, if an employee was working with dangerous factory machinery where the wearing of a headscarf may cause a risk to their safety. However, in this case the company were relying only on their commercial interests which were not sufficient to enable them to take advantage of this defence.
These legal opinions of the Attorney General have been submitted to the European Court of Justice who will ultimately decide the outcome of these cases. The Attorney General’s opinions are advisory only and the European Court of Justice do not have to follow them, however they are followed more often than not.
These are the first religious discrimination cases to come before the European Court of Justice and it will be interesting to see how the Court deal with this sensitive subject following two contradictory opinions of the Attorney General. The decision of the European Court of Justice on both cases is expected to be published together towards the end of the year and this important decision will set a precedent going forward throughout the EU.
While waiting for the final decision of the European Court of Justice, employers in the UK would be wise to review their dress code policies and consider any restrictions to employees’ rights to wear religious clothing or symbols carefully.
When deciding whether to impose such restrictions, factors that an employer should consider include:
• Don’t make assumptions about the significance of religious clothing or symbols. Before making any decision, speak to the employees who will be affected.
• Ensure that all requests to wear particular clothing or symbols are treated in the same way and that particular individuals are not treated more or less favourably.
• Put in place an equal opportunities policy and dress code which is clear and communicated to all staff.
• Consider any health and safety implications.
• Consider the effect on your clients, customers or service users.
• Consider your business needs in terms of any uniform and corporate image, although this is unlikely to be sufficient as the only factor in your decision making.
All employees have the right not to be discriminated against on the grounds of their religion or beliefs.
If restrictions are placed on employees preventing them from wearing items which they consider to be an important or mandatory part of their religion or beliefs, this must be for a justifiable reason that goes beyond the purely commercial interests of the company.