Headscarf ban justified

09 June 2016

Achbita and anor v G4S Secure Solutions NV

Three years into her employment at a Belgian security company, a Muslim employee began to wear a headscarf at work, even though there was a company rule which prohibited the wearing of any visible signs of political, philosophical or religious beliefs.

The employee was dismissed and she brought claims against her employer in the Belgian courts. The Belgian Court of Cassation asked the European Court of Justice for a preliminary ruling clarifying the ban under EU law of discrimination on the grounds of religion or belief.

The Advocate General gave the opinion that a private company’s ban on employees wearing religious, political or philosophical symbols while on duty, which led to the dismissal of the employee for wearing an Islamic headscarf, did not amount to direct discrimination. This was because the company’s ban was founded on a general company rule prohibiting visible 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. The ban could however amount to indirect discrimination and she went on to consider justification.

The Advocate General considered it relevant that employers benefit from a fundamental freedom to run a business which must include the right to determine how roles are carried out and to insist on compliance with a dress code as part of company policy. Here, the headscarf ban was part of the company’s policy of religious and ideological neutrality, which was crucial given the wide range of customers with which it dealt. The policy therefore pursued a legitimate aim. The Advocate General also gave the opinion that the policy was appropriate and necessary, given that no less intrusive but equally suitable alternatives for achieving the same objective had been identified.

An opinion by an Advocate General does not bind the Court – and we await the judgment in this case with interest – but it tends to be predictive of the final ruling in a high proportion of cases.

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