Achbita v G4S Secure Solutions NV (European Court of Justice, C-157/15, 14 March 2017) and Bougnaoui v Micropole SA (European Court of Justice, C-188/15, 14 March 2017)
The European Court of Justice has clarified European law surrounding workplace prohibitions on wearing religious symbols in customer facing roles.
While European law upholds freedom of people to manifest their religious beliefs in public, the Court held that employers can have an objective justification for adopting a consistently applied workplace policy of neutrality in its dealing with its customers which prohibit any visible signs of religious, political or philosophical beliefs. However, where a workplace policy is based on subjective criteria or disadvantages people with particular religious beliefs, this would amount to indirect discrimination.
The matters were referred back to the State Courts to assess whether the dismissals of two women for wearing Islamic headscarves at work constituted unlawful discrimination on the facts.
On 14 March 2017, the Grand Chamber of the European Court of Justice ruled on two cases concerning prohibitions by employers of wearing visible signs of religious belief – particularly Islamic headscarves – in the workplace. The plaintiffs in both cases argued that the prohibitions were discriminatory and contrary to their rights to equality and non-discrimination under European law.
In the first case, Achbita v G4S, Ms Achbita, a Muslim woman, was employed as a receptionist by G4S in Belgium. At the time, G4S maintained an unwritten rule that employees should not wear visible signs of their political, philosophical or religious beliefs in the workplace. In April 2006, Ms Achbita told the company that she intended to start wearing an Islamic headscarf to work. G4S management informed her that to wearing an Islamic headscarf was contrary to the company’s position of neutrality”. On 29 May 2006, G4S approved an amendment to its workplace regulations to explicitly prohibit the wearing of political, philosophical or religious symbols in the workplace. On 12 June 2006, Ms Achbita was dismissed from G4S on account of her continued insistence that she wished, as a Muslim, to wear a headscarf at work. Ms Achbita pursued a case against her dismissal through the Belgian labour courts. Eventually, the Belgian Court of Cassation referred a question to the ECJ on whether the G4S regulation amounted to direct discrimination prohibited under European Law.
The second case, Bougnaoui v Micropole, involved similar circumstances. In February 2008, Ms Bougnaoui, who was also a Muslim woman, had been recruited by Micropole, a French IT consulting company, as an intern and later design engineer. During her recruitment she had been told that wearing a headscarf when in contact with customers might pose a problem, but she had subsequently worn one repeatedly during her work. On 22 June 2009, Ms Bougnaoui was dismissed by letter from Micropole. The letter stated that a customer of Micropole had informed them that Ms Bougnaoui had worn a headscarf while performing services for the customer and that this had upset a number of the customer’s employees. The letter further noted that Ms Bougnaoui had previously been informed that, although Micropole ‘respect[ed] the principle of freedom of opinion and religious beliefs …’, it must also affirm the principle of neutrality and due to Ms Bougnaoui’s customer-facing position, she would not be permitted to wear a headscarf. Ms Bougnaoui challenged her dismissal through the French courts. Eventually, the Court of Cassation referred a question to the ECJ on whether a customer’s request that a consulting company employee providing services to the customer no longer wear a headscarf was a permissible ‘occupational requirement’ under EU law.
The ECJ gave divergent decisions in these two cases, deciding in favour of G4S and against Micropole. However, both decisions clarified the law applying to workplace prohibitions on headscarves and will allow employers broad control over their employees’ dress.
In Achbita the case turned on whether G4S’s prohibition constituted direct or indirect discrimination, both of which are prohibited under European Law. European Council Directive 2000/78 defines direct discrimination as ‘where one person is treated less favourably than another is, has been or would be treated in a comparable situation’ on the grounds of religion, belief, disability, age or sexual orientation. Indirect discrimination is defined as ‘where an apparently netural provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage with other persons’.
Noting that Directive 2000/78 was introduced to encourage the principle of “equal treatment” in Member states, the Court ruled that the G4S prohibition did not amount to direct discrimination because it applied uniformly to the wearing of all visible signs of political, philosophical or religious beliefs and therefore would treat all workers in the same way.
The Court referred the matter back to the Belgian Court of Cassation with the direction that the prohbition on wearing an Islamic headscarf from an internal employment undertaking prohibiting any visible religious symbol was not direct discrimination under European law. However, the Court also directed that an apparently neutral obligation would constitute indirect discrimination people from a particular religion or belief are at a particular disadvantage, unless it is objectively justified by a legitimate aim (e.g. an employer’s position of religious neutrality with customers) and the means of achieving that aim are appropriate and necessary.
Although noting that it was not called upon to answer the question by the Belgian court, the ECJ also offered an opinion that G4S’s prohibition did not amount to indirect discrimination. According to Directive 2000/78, indirect discrimination is permitted if it is objectively justified for a legitimate aim and if the means of achieving that aim are appropriate and necessary. The Court considered that a company’s desire to publicly project a policy of political, philosopical and religious neutrality was legitimate and that the prohibition was appropriate for ensuring that the policy of neturality was consistently and systematically applied and that it was necessary to achieve neutrality in this context.
In Bougnaoui the central issue was whether the customer’s request that Ms Bougnaoui not wear a headscarf while providing services to the customer was a “genuine and determining occupational requirment’. Article 4(1) of Directive 2008/78 permits States to stipulate in their domestic law that differential treatment of a person on the basis of a characteristic related to their religion, belief, disabiliy, age or sexual orientation is not discrimination if, by reason of the nature or context of their occupational activities, that characteristic constitutes a genuine and determining occupational requirement and provided that the objective is legitimate and the requirement proportionate. Article 4(1) was incorporated into the French Labour Code.
Reiterating obiter from previous cases, the Court noted that it is only in very limited circumstances that a characteristic related to, in particular, religion may constitute a genuine and determining occupational requirement. Furthermore, the concept of a genuine and determining occupational requirement is objectively determined by the nature and/or context of a person’s occupational activities, and cannot incorporate subjective considerations of the employer, such as the willingness to follow the wishes of the customer.
Consequently, the Court referred the case back to the French Court of Cassation with the direction that the willingness of Micropole to follow the wishes of their customer in relation to Ms Bougnaoui’s wearing of the headscarf was subjective and could not be considered a genuine and determining occupational requirement.
The Achbita and Bougnaoui decisions were highly anticipated within European legal circles as test cases to reconsider the law surrounding workplace bans on religious dress. Despite this, these decisions simply followed the course of earlier cases, while providing some clarification of the law.
European law, as it has been interpreted by the Court, has allowed employers signficiant control over how their employees manifest their religious belief in how they dress. Moreover, the Court has allowed States a signficant margin of appreciation in determining the legitimacy of such prohibitions in their national social and cultural contexts.
The Court has indicated that it will likely not support a prohibition that is imposed as a response to subjective employer concerns, such as the request of an individual customer. However, citing the right to conduct a business under article 16 of the European Convention of Human Rights, the Court has also recognised that an employer may lawfully discriminate to project a policy of neutrality to the public in respect of religion. These rulings have been criticised as leaving the door open for employers to hide behind seemingly neutral policies to discriminate against employees of faith, particularly Muslim women wearing Islamic headscarves, and as tipping the scale away from the rights of the individual to publicly manifest their religious beliefs and towards the rights of the business.
Although these decisions only have legal implications for members of the European Union, they provide guidance about judicial consideration of balancing rights to freedom of religion and belief against commercial and business interests which are relevant in Australia. At various times the media and politicians have made the public wearing of religious dress a prominent political and social topic in Australia. Despite the outrage that has charactersied this debate, the human rights implications of bans on religious dress and their disproportionate impact on minority groups, such as Muslim women, mean that we, as a community, must be wary of restricting individual rights and freedom of religion without due consideration.
Beau Paterson is a volunteer at the Human Rights Law Centre.