Internal rules prohibiting visible wearing of religious signs do not constitute direct discrimination

However, in the absence of such a rule, the willingness of an employer to take account of the wishes of a customer no longer to have the employer’s services provided by a worker wearing an Islamic headscarf cannot be considered an occupational requirement that could rule out discrimination.

In the first case, Samira Achbita, a Muslim, was employed as a receptionist by G4S from 2003 to 2006.

However, she was dismissed for insisting on wearing the headscarf after rules at the company came into force providing that “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”.

Following a request for clarification of the directive on equal treatment in employment and occupation from the Court of Cassation, Belgium, the Court of Justice noted first of all that, under the directive, the “principle of equal treatment” means that there is to be no direct or indirect discrimination whatsoever on the grounds, inter alia, of religion. Although the directive does not include a definition of “religion”, the EU legislature referred to the European Convention on Human Rights (ECHR) and to the constitutional traditions common to the member states, which have been reaffirmed in the Charter of Fundamental Rights of the European Union. Therefore, the concept of religion must be interpreted as covering both the fact of having religious belief and the freedom of persons to manifest that belief in public.

The Court of Justice found that G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction. The rule thus treats all employees of the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally. It is not evident from the material in the file available to the court that that internal rule was applied differently to Ms Achbita as compared to other G4S employees. Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive.

The court noted that it is not, however, inconceivable that the national court might conclude that the internal rule introduces a difference of treatment that is indirectly based on religion or belief, should it be established that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage.

Nevertheless, such a difference of treatment would not amount to indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary. Whilst emphasising that the national court hearing the case has sole jurisdiction to determine whether, and to what extent, the internal rule meets those requirements, the Court of Justice provides guidance in that respect.

In the second case, that of Asma Bougnaoui, a Muslim, the French Court of Cassation asked the Court of Justice whether the willingness of an employer to take account of the wishes of a customer no longer to have that employer’s services provided by a worker wearing an Islamic headscarf may be considered a “genuine and determining occupational requirement” within the meaning of the directive.

The court stated that if dismissal was based on an internal rule, as in G4S Secure Solutions, this would be objectively justified. However, if it was not, it would be necessary to determine whether the willingness of an employer to take account of a customer’s wish no longer to have the employer’s services provided by a worker who wears an Islamic headscarf is justified for the purposes of article 4(1) of the directive, according to which member states may provide that a difference of treatment prohibited by the directive does not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, the characteristic at issue constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

The answer given by the court was that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of the directive.