Malta: Ban Of Islamic Headscarves At The Workplace: The Position Of The European Court Of Justice

The European Court of Justice (the "ECJ") has recently ruled on the case C-157/15  related to Ms. Samira Achbita, a receptionist working for the company G4S Secure Solutions NV.

Ms. Achbita was dismissed due to her continued insistence on wearing an Islamic headscarf to work despite the existence of an internal rule of neutrality, which prohibited employees from wearing any political, philosophical, or religious sign(s) at the workplace. Ms. Achbita challenged this decision in the Belgian courts, and the Belgian Court of Cassation referred the question whether the prohibition of wearing an Islamic headscarf which arises from a general internal rule of a private company, may constitute direct discrimination.

The CJEU declared that the principle of equal treatment means that there is to be no direct nor indirect discrimination on the grounds (inter alia) of religion. Since the Council Directive on Equal Treatment in Employment and Occupation 2000/78/EC (the "Directive"), does not include a definition of religion, the CJEU referred to the European Convention on Human Rights, and declared that the concept of religion must be interpreted as both the fact of having religious belief, as well as the freedom to manifest that belief in public.

The Court concluded that the prohibition arising from an internal rule of a private company prohibiting the wearing of any political, philosophical, or religious sign in the workplace does not constitute direct discrimination based on religion or belief within the meaning the Directive.

However, the CJEU also noted that the said internal rule may constitute indirect discrimination, if this apparently neutral provision put persons of a particular religion at a disadvantage.  Such indirect discrimination may be objectively justified by a legitimate aim, such as the pursuit by the employer in its relationship with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving the aim are appropriate and necessary.

As stated by the ECJ, the Belgian court shall decide whether these conditions are satisfied by taking into account, among other things, the following determining factors:

  • whether the rule of neutrality applied only to those employees who had visual interaction with customers; and
  • whether the company could have offered her another position where she would not have had such interaction with customers, provided that this could be done without placing an added burden on the company.

The ECJ has also recently ruled on the case C-188/15, related to the case of Ms. Asma Bougnaoui. Her relationship with the company Micropole began when she met a representative from the company at a student fair. At that time, she was not wearing a headscarf, and was warned that doing so may create an issue. During the period of internship, she only wore a bandana, however after her internship ended and she was employed via a contract of an indefinite duration as a design engineer, she started to wear an Islamic headscarf. After a complaint by a customer of the company, the company requested that she not wear come to the workplace wearing an Islamic headscarf, and was dismissed upon her refusal.

Therefore, she challenged this before the French Courts, and the French Court of Cassation referred the question whether the willingness of an employer to take a customer's complaint not to have services provided by a worker wearing an Islamic headscarf into account, constituted a genuine and determining occupational requirement within the meaning of the Directive.

The CJEU queried whether the conditions of the above case involving Ms. Achbita were satisfied. The CJEU declared that if not, it would be necessary to enquire whether the willingness of the employer to take account of a customer's wish to no longer have the services of the employer provided by a worker who wears an Islamic headscarf is justified for the purposes of article 4(1) of the Directive. This article provides that a difference in treatment 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 CJEU pointed out that this is only true of very few situations, and it definitely does not cover subjective considerations, such as the employer's willingness to take account of the particular wishes of a customer. Therefore, the CJEU concluded that the willingness of an employer to take account of the wishes of a customer to no longer have services provided by a worker wearing an Islamic headscarf could not be considered to be a genuine and determining occupational requirement within the meaning of the Directive.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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