Controversial Blanket-Ban Policy Receives CJEU Clarification

With the Court of Justice of the European Union’s opinion in the case of Achbita v G4S Secure Solutions recently announced, now seems to be an apt time to address religious freedoms at work and the possible impact of this case on them.

In this case a Muslim woman employed as a client-facing receptionist announced to her employer that she would be starting to attend work wearing a religious headscarf. Her employer objected to this stating that there was an unwritten rule requiring all client-facing staff to dress neutrally and avoid wearing “political, religious or similar signs”.

The woman insisted on wearing her headscarf and was dismissed; as a result she subsequently brought a claim of direct discrimination. This case was then referred to the CJEU by the Belgian Courts for clarification on whether or not an employer’s blanket requirement for its workforce to dress “neutrally” could constitute direct discrimination.

The CJEU has now returned its verdict on this case stating that the circumstances did not amount to direct discrimination as all customer facing employees were subject to the same requirements and it prohibited “all religious and political signs” not simply the signs of one faith or political group. The CJEU have left it to the Belgian courts to decide on indirect discrimination but have offered their view on the matter which seems to indicate they may find the policy legally sound.

Indirect discrimination, unlike direct discrimination, is defendable if it is objectively and reasonably justified. The CJEU seems to believe the Respondent met the threshold of objective justification in this case by citing that the Respondent’s aim to produce an image of neutrality was a legitimate aim as it only applied to customer facing roles. The judgment has, however, left the decision on reasonableness for the Belgium courts to decide by indicating the possibility of reinstatement of the Claimant in a non-customer facing role instead of dismissal.

Looking at the wider implications of this judgment it is important to consider what kind of impact allowing businesses to use this policy would have on workplace diversity. If this policy did become wide-scale practice, then it would arguably lead to a fall in people of faith working in customer facing roles. It is worth considering that for many people of faith wearing religious dress is not optional, it is often an important if not integral part of their faith. This would effectively make customer-facing roles unsuitable for some people of faith and seems to be a very restrictive precedent.

I personally find the company’s reasoning in this case troubling, and fail to see how independent religious or political beliefs of individuals working at a company offend neutrality. The idea that a person may see an employee respectfully expressing their belief through their dress and then attribute that particular faith or organisation to the employer of said employee seems to require some rather large assumptions. It would seem logical that neutrality is best shown, not in restricting all forms of religious and political expression for fear of association, but in having equal indifference towards them all.

The final judgement of the Belgian courts on the issue of indirect discrimination is still awaited.

James Battle - Legal Assistant

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