It’s all in the consistency…

In the first case brought before the European Court of Justice (“ECJ”) under the Equal Treatment Directive (on which the Equality Act 2010 is based), Advocate General Kokott’s opinion (effectively a draft judgment) has made a somewhat surprising finding that where an employee is prohibited from wearing any visible signs of political, philosophical or religious belief, so long as the prohibition is consistent among differing religious groups, this would not amount to direct religious discrimination.

In Achbita and another v G4S Secure Solutions NV, a Muslim employee was dismissed after informing her employer of her intention to wear her headscarf in the workplace, contrary to the company’s dress-code policy.  The Claimant took her case to the ECJ to clarify whether a company ban on wearing religious symbols at work constituted discrimination. A-G Kokott’s opinion (which is not binding on the ECJ or domestic courts), was that the ban applied “to all visible religious symbols without distinction” and as such could affect individuals of other religions and was not discriminatory ‘between religions’.  Further, she stated that if the employer’s aim to achieve a neutral image in respect of religion and ideology was being legitimately met by such a ban, it could be considered as a genuine and legitimate occupational requirement, and therefore could be justified.

The A-G’s opinion should be approached with caution until the final judgment is released.  We are also awaiting the ECJ’s judgment in a similar case, Bougnaoui v Micropole Univers C-188/15, which, again, will determine if the need to adopt a ‘neutral appearance’ can be an occupational requirement. Once these two judgments have been released, it will be interesting to see the approach the UK Tribunals take.  For now, employers should continue to treat such policies with extreme caution and seek legal advice if they are intending to implement such a ban.

Employmentbuddy.com