The recent decision of the European Court of Justice in Achbita v G4S Secure Solutions and Bougnaoui v Micropole, so far published only in press release form, has attracted widespread attention and a number of assumptions about its meaning and consequences. Not all of these are well founded.
These were not, of course, decisions of the European Court of Human Rights nor the domestic application of ECHR jurisprudence, but referrals from the Belgian and French Courts of Cassation for an interpretation of how EU law should be applied.
In 2003, Ms Achbita had been employed by G4S in Belgium as a receptionist. Three years later, she decided that she wished to wear a hijab at work. This, she was told, contravened unwritten company rules prohibiting employees from displaying outwards signs of religious, philosophical or political affiliation at work. These rules became written ones a month after Ms Achbita had announced her intentions. She was then dismissed for their breach.
The Belgian Court sought guidance as to whether G4S had acted in contravention of principles prohibiting direct discrimination.
The ECJ confirmed that there was a principle of equal treatment under the EU Directive on Equal Treatment in Employment and Occupation (2000/78/EC) which prohibited direct and indirect discrimination on grounds of religion, be it belief or outward expression.
However in this case G4S’s policy was found not to discriminate against a particular religious group, as it applied its bar on outward expressions of belief to all religious, political and philosophical groups. G4S treated everyone the same and was therefore not directly discriminatory against any individual group. Its policy of prohibiting the hijab did not, therefore, contravene the principle.
The Court went on to consider whether this company policy could constitute indirect discrimination. Although it was a ‘neutral’ obligation applying to all employees, it might in practice indirectly put members of a particular group (say, Moslem women) at a disadvantage.
Here, however, the Court felt that even if that were the case, the policy might in certain circumstances survive the test of justification; that is, that it was an appropriate and necessary means of achieving the legitimate aim of the appearance of outward neutrality.
The ECJ therefore indicated that the Belgian Court which had sought guidance ought to consider, on the facts, whether this policy was pursued consistently, whether it only applied to customer-facing employees, and whether G4S had considered the alternatives to dismissal (such as redeployment to a noncustomer-facing role). These were not matters which the ECJ had itself to determine.
The Court does not appear to have considered whether it made a difference that the policy was introduced after Ms Achbita had been employed by G4S, varying the terms of her employment, though perhaps this is a further variable which may be considered when the matter is taken up again in Belgium.
The ECJ decided, then, that G4S’s policy (as a private company) did not constitute unlawful direct discrimination and did not constitute indirect discrimination as far as the facts had so far been ascertained, subject, then, to final determination by the domestic Court.
Unlike Ms Achbita, Ms Bougnaoui’s intention to cover her head had been known to her employer, Micropole, from when they had first met at a student recruitment event. However, a customer complained about her doing so and Micropole adopted the same position as G4S, that outward religious manifestation was not sufficiently ‘neutral’. Ms Bougnaoui too was dismissed and brought her claim in the Courts of France.
Again, the ECJ on a preliminary reference guided the domestic Court as to how it should approach Ms Bougnaoui’s complaints.
If the Court was satisfied that her dismissal was because of her refusal to comply with the internal policy of a private undertaking, then those considerations described in Achbita would equally apply in relation to both direct and indirect discrimination.
If, however, this matter only arose because of the customer’s complaint, the Court should consider whether those objections could be justified as a relevant consideration under Article 4(1) of the Directive. This Article allows EU member states to decide whether what appears to be discrimination could in fact be justified as a genuine occupational requirement which could be justified objectively. However such a justification would be rare.
In short, if Micropole dismissed Ms Bougnaoui simply because a customer had asked them to do so, that customer’s wishes could not be a genuine and determining occupational requirement.
A great deal of press coverage and comment reductively seems to describe this as the ECJ’s upholding a ban on the hijab and burkha. Its decision might assist those countries who want to put such measures in place, but at least as far as the press summary indicates, the decision simply does not vindicate a ban at national level. Nor, incidentally, does it see Luxembourg establishing new law to be imposed upon our domestic courts.
This, of course, has nothing whatsoever to do with how Articles 8, 9 and 14 of the European Convention should be interpreted and applied. Nevertheless, it does give rise to the possibility that under EU Directives, depending on the facts, this type of conduct by private companies may not always be unlawful. For this reason alone the attention that the decision has received, following the furore around ‘burkinis’ and so on, is understandable. The decision does not ‘ban the burkha’, nor the hijab, the kippah, the turban, crosses, or wimples. It may, however, give some comfort to private organisations wishing to justify doing so within their own employment conditions.
Graeme Kirk / 17th Mar 2017
The information and any commentary on the law contained on this web site is provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by any member of Chambers. The information and commentary does not, and is not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter and not to rely on the information or comments on this site. No responsibility is accepted for the content or accuracy of linked sites.
If you like what you've read but want to know more about how we can help you, simply call us:
Alternatively you can send us an email and a member of our team will contact you as soon as possible.