September-28-2016 in Employment Law
Direct discrimination occurs where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to below. Indirect discrimination occurs where an apparently neutral 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 compared with other persons unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
The purpose of Directive 2000/78 is '"to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment" (Art1). The directive protects employees from being discriminated against, both directly and indirectly.
Achbita and Anor v G4S Secure Solutions NV [2016]
The opinion reached by the Advocate General is an interesting conclusion in relation to a dispute over direct discrimination and neutrality.
Facts of the case in brief: G4S Secure Solutions (G4S) is an organisation that provides, inter alia, security and guarding services as well as reception services in the public and private sector. Ms Achbita, who is of Muslim background, joined G4S as a receptionist under an indefinite employment contract on 12 February 2003. G4S had always had an unwritten company rule that their employees were not allowed to wear any religious, political or philosophical symbols while on duty. On 13 June 2006 G4S introduced the following written rule: "employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them."
Without objecting to the unwritten company rule, Ms Achbita wore a headscarf exclusively outside of working hours for a period of more than three years. In April 2006, she announced that she intended to wear a headscarf, going forward, during working hours for religious reasons. G4S informed Ms Achbita that this was against the neutrality sought by G4S.
After a period of sickness, Ms Achbita returned to work on 15 May 2006 wearing her headscarf. On 12 June 2006, on account of her firm intention, as a Muslim woman, to wear the Islamic headscarf, Ms Achbita was dismissed with a severance allowance. Ms Achbita unsuccessfully brought a claim for damages for wrongful dismissal against G4S, seeking in the alternative, damages for discrimination. On appeal, the Belgian Labour Court dismissed the claim brought by Ms Achbita on the grounds that no direct or indirect discrimination occurred. Ms Achbita appealed this decision to the Higher Labour Court in Antwerp (Arbeidshof te Antwerpen). The Higher Labour Court also dismissed her claims and found that G4S was under no obligation to assume that its internal ban was illegal and that Ms Achbita's dismissal could not be regarded as manifestly unreasonable or discriminatory.
On further appeal, the Court of Cassation stayed proceedings and referred a preliminary question to the European Court of Justice: '"Should Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 be interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?"
Direct discrimination
Given the present case relates to religious symbols, the Advocate General considered direct discrimination based on religion. Discrimination is an unjustified difference of treatment. The Advocate General had the opinion that the ban on wearing religious symbols could not be classified as direct discrimination. It was held that for direct discrimination to occur under Article 2 (2)(a) of Directive 2000/78 is that, on account of religion, one person is treated less favourably than another is, has been or would be treated. There is no evidence of either discrimination against the members of one religious community as compared with the followers of other religions, or of discrimination against religious individuals as compared with non-religious individuals or professed atheists. The company rule only gives different treatment between employees who wish to give active expression to a particular belief, be it religious, political or philosophical and those who do not. This does not constitute less favourable treatment that is directly and specifically linked to religion. The ban is neutral from the point of religion and ideology.
That ban may, however, constitute indirect discrimination based on religion under Article 2(2) (b) of that directive. An indirect difference of treatment based on religion may be objectively justified by a legitimate aim. In this instance, the ban on visible political, philosophical and religious symbols, is appropriate and necessary for achieving that aim.
Exemption under Article 4(1)
The Advocate General explored the view that, even if the court did find the ban amounts to direct discrimination, then it can be justified by Article 4(1) of the directive. Article 4(1) exempts differences of treatment based on a characteristic related to religion "where by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate". AG Kokott concluded that undertakings such as G4S may legitimately decide on a policy of strict religious and ideological neutrality and demand of its employees to present themselves in a neutral way at the workplace. A ban such as this cannot be brought in for purely economic grounds, however – an undertaking should be allowed discretion in how it conducts its business, that includes the manner in which employees' roles are conducted and the nature of the dress code in question. Given the different services that G4S provides to its broad customer base, the AG concluded that the religious and ideological neutrality policy pursued was a legitimate aim.
Advocate General Kokott has given an opinion that allows employers to ban employees wearing religious, political philosophical symbols during work when it is proportionate so as to allow employers to enforce a strict policy of neutrality. A court, when deciding if the proposed policy is proportionate, should take into account the following factors:
- the size and conspicuousness of the religious symbol
- the nature of the employee’s activity
- the context in which she has to perform that activity
- he national identity of the member state concerned.
If an undertaking introduces a policy such as this, then it must be both appropriate and necessary. In this case, the ban was considered appropriate. It was enforced upon all of its employees consistently and it was necessary for achieving the objective of religious and ideological neutrality. In this case, there was no suitable alternative, in relation to the blanket ban, for G4S to introduce in Ms Achbita’s case.
Conclusion
The Advocate General’s opinion is usually, but not always, followed by the Court of Justice of the European Union (CJEU). The case will come before the CJEU at a later point in time. If this opinion is followed, it will allow employers the ability to restrict employees from displaying their religious and ideological symbols at the workplace if a legitimate aim is sought, such as neutrality.
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