Analysis of Achbita & Anor v. G4S Secure Solutions
The “Headscarf” Case
Discrimination is a forever evolving subject in the area of employment law. In this article John Cato provides and analysis of the recent ‘Head Scarf Case’ which raises the issue of work attire and what constitutes ‘direct’ and ‘indirect discrimination’ which is a key issue for employers to understand.
You may recall that in Eweida v. British Airways Plc (2010) the Court of Appeal held that British Airways’ uniform policy banning the wearing of a cross outside the uniform was not indirect religious discrimination – but the European Court of Human Rights then held the UK had failed to protect Mrs. Eweida’s right under Article 9 of the European Convention on Human Rights to manifest her religious belief.
However, in this case, the European Court of Justice held the headscarf band did not constitute direct discrimination because there was no evidence that Ms. Achbita was treated differently when compared to other workers.
The ECJ said that where an employer had a policy of upholding political, philosophical or religious neutrality in roles dealing directly with customers, this must be considered a legitimate aim. This derives from an employer’s freedom to conduct a business and allows limits to be placed on the freedom to manifest religion.
Case Outcome Summary – Legitimate Aim
In summary, it is a legitimate aim for a company to promote a certain image and brand to its customers. Therefore, a female employee of Muslim faith being prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion if the ban results from general company rules prohibiting visible political, philosophical and religious symbols in the workplace and are not based on stereotypes or prejudice against a particular religion.
It may, however, be indirectly discriminatory.
(There is a difference between direct and indirect discrimination. If I am a shop having a sale and due to customer crowding I pin a sign on the door which says “no prams allowed”, possibly for health and safety reasons, that does not directly discriminate against women. However, the fact that 99% of those pushing prams in front of my shop are likely to be women means that it is probably indirectly discriminatory.)
Therefore, to justify its decision the company would have to take into account the type of activity the employee is undertaking, i.e.,
- is it a customer-facing role;
- what are the surrounding social circumstances;
- the size and conspicuousness of the religious marking.
Each case will be decided on its own merits, but in this case, the employer’s right to conduct its business succeeded against the employee’s right to manifest their religion.