InsightsInsight - Employment & HR - POSTED: June 7 2016
Advocate General argues dress code banning Muslim headscarves may not be direct discrimination
After a woman was dismissed by her employer for refusing to remove her Muslim headscarf, the Advocate General has argued that this did not amount to direct discrimination.
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In Achbita and another v G4S Secure Solutions NV, a Belgian company’s dress code did not permit any visible religious political or philosophical symbol. Ms Achbita was employed as a receptionist. On 12 June 2006, she was dismissed, owing to her refusal to abide by the company’s dress code by removing her Muslim headscarf.
The Belgian Labour Court held that this was neither direct nor indirect discrimination, and this decision was upheld on appeal. At the Belgian Supreme Court the proceedings were stayed and the matter referred to the ECJ as to whether the headscarf ban amounted to direct discrimination under the Equal Treatment Framework Directive.
Advocate General Kokott opined that the dress code did not amount to direct discrimination based on religion or belief, and even if it did, it could be justified as a genuine and determining occupational requirement, bearing in mind the employer’s desired objective of religious and ideological neutrality. The Company implemented this policy as part of a legitimate commercial choice, given the broad range of clients in the public and private sectors which the company provide services to.
Advocate General Kokott stated that the policy may constitute indirect discrimination since it is capable of putting individuals of certain religions or beliefs at a particular disadvantage by comparison with other employees. However, the factors considered as part of the occupational requirement exception above would also apply to the issue of justification in the context of indirect discrimination. These include the size and conspicuousness of the religious symbol, the nature of the employee’s activity within the employment and the national identity of the member state concerned.
We wait to see whether the ECJ adopt the opinion of the Advocate General.
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