Achbita v G4S Secure Solutions NV (C-157/15)

Ms Achbita, a Muslim receptionist at G4S in Belgium, was dismissed for insisting on wearing an Islamic headscarf at work, contrary to the employer’s neutrality rule banning all visible political, philosophical or religious signs. The CJEU held this was not direct discrimination but could amount to indirect discrimination.

Facts

Ms Samira Achbita, a Muslim woman, began working as a receptionist for G4S Secure Solutions NV, a Belgian private undertaking providing reception services to public and private sector customers, on 12 February 2003. At that time, G4S operated an unwritten rule prohibiting employees from wearing visible signs of political, philosophical or religious beliefs in the workplace.

In April 2006, Ms Achbita informed her managers of her intention to wear an Islamic headscarf during working hours. G4S’s management responded that this would not be tolerated as it conflicted with the company’s stance of neutrality. On 29 May 2006, the G4S works council formally amended the workplace regulations, effective 13 June 2006, to prohibit employees from wearing any visible signs of political, philosophical or religious beliefs, or engaging in any observance of such beliefs, in the workplace. On 12 June 2006, Ms Achbita was dismissed for insisting on wearing the headscarf, receiving a severance payment.

Ms Achbita’s challenge to her dismissal was rejected by the Antwerp Labour Court and, on appeal, by the arbeidshof te Antwerpen. She then appealed on a point of law to the Hof van Cassatie (Court of Cassation, Belgium), which referred a question to the CJEU concerning the interpretation of Article 2(2)(a) of Directive 2000/78/EC.

Issues

The referring court asked, in essence, whether Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that the prohibition on a female Muslim wearing an Islamic headscarf at work, arising from an internal rule of a private undertaking imposing a blanket ban on the visible wearing of any political, philosophical or religious sign in the workplace, constitutes direct discrimination on the grounds of religion or belief.

Arguments

Ms Achbita

Ms Achbita argued that the arbeidshof te Antwerpen misconstrued the concepts of ‘direct discrimination’ and ‘indirect discrimination’ under Article 2(2) of Directive 2000/78 by treating the religious basis of G4S’s ban as a neutral criterion and by failing to characterise the ban as unequal treatment between workers wearing an Islamic headscarf and those who do not.

G4S

G4S maintained that the ban was a general rule of neutrality applying to all employees without distinction, and that Ms Achbita had been dismissed not because of her Muslim faith as such, but because she persisted in wishing to manifest that faith visibly during working hours.

Judgment

Meaning of ‘religion’

The Court noted that Directive 2000/78 does not define ‘religion’. Referring to Article 9 ECHR and Article 10(1) of the Charter of Fundamental Rights, the Court held that the concept of ‘religion’ in Article 1 of the Directive covers both the forum internum (holding a belief) and the forum externum (manifestation of religious faith in public).

Direct discrimination

The Court found that the G4S internal rule referred to the wearing of visible signs of political, philosophical or religious beliefs without distinction, and treated all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, to dress neutrally. There was no evidence in the file that the rule was applied differently to Ms Achbita than to any other worker. Consequently, the rule did not introduce a difference of treatment directly based on religion or belief within the meaning of Article 2(2)(a).

Indirect discrimination

The Court went on to observe that the rule might nevertheless constitute indirect discrimination under Article 2(2)(b) if the apparently neutral obligation resulted, in fact, in persons of a particular religion or belief being put at a particular disadvantage. This would be a matter for the referring court to ascertain. Any such indirect discrimination would be lawful only if objectively justified by a legitimate aim, pursued by appropriate and necessary means.

Legitimate aim

The Court held that an employer’s desire to project an image of neutrality towards public and private sector customers is legitimate, being connected to the freedom to conduct a business under Article 16 of the Charter, particularly where only workers who come into contact with customers are involved. The Court referenced Eweida and Others v United Kingdom (ECtHR, 15 January 2013) in support.

Appropriateness

A prohibition on the visible wearing of such signs is appropriate for ensuring that a policy of neutrality is properly applied, provided that the policy is genuinely pursued in a consistent and systematic manner. The referring court must ascertain whether G4S had established a general and undifferentiated policy applying to staff in customer-facing roles prior to the dismissal.

Necessity

The ban must be limited to what is strictly necessary. It must be established whether the prohibition covers only workers who interact with customers. Further, the referring court must consider whether G4S, faced with Ms Achbita’s refusal, could have offered her a post without visual customer contact, without imposing an additional burden on the undertaking, rather than dismissing her.

Implications

The ruling establishes that a blanket, neutrally worded internal rule of a private undertaking prohibiting the visible wearing of political, philosophical or religious signs in the workplace does not, in itself, amount to direct discrimination on grounds of religion or belief under Article 2(2)(a) of Directive 2000/78. Such a rule may, however, constitute indirect discrimination under Article 2(2)(b) if it places adherents of a particular religion or belief at a particular disadvantage, unless justified by a legitimate aim pursued by appropriate and necessary means.

The Court recognised that an employer’s pursuit of a policy of political, philosophical and religious neutrality vis-à-vis customers is, in principle, a legitimate aim linked to the freedom to conduct a business (Article 16 of the Charter). However, the Court imposed important qualifications: the neutrality policy must be genuinely pursued in a consistent and systematic manner; the prohibition must be restricted to those workers who interact with customers; and, before dismissal, the employer should consider whether the worker could be reassigned to a non-customer-facing role, provided this would not impose an additional burden.

The judgment has significant implications for employers in the EU seeking to enforce workplace dress codes and neutrality policies, and for employees who wish to manifest their religion visibly at work. It reflects a balancing exercise between freedom of religion (Article 10(1) of the Charter, Article 9 ECHR) and the freedom to conduct a business. The final assessment as to whether the specific rule met the tests of appropriateness and necessity was left to the referring national court, meaning that the judgment does not authorise all workplace bans on religious dress without scrutiny, but rather sets a framework for their evaluation.

Verdict: The Court (Grand Chamber) ruled that Article 2(2)(a) of Directive 2000/78 must be interpreted as meaning that the prohibition on wearing an Islamic headscarf arising from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace does not constitute direct discrimination based on religion or belief. Such an internal rule may, however, constitute indirect discrimination under Article 2(2)(b) if it puts persons adhering to a particular religion or belief at a particular disadvantage, unless it is objectively justified by a legitimate aim (such as the employer’s pursuit of a policy of neutrality towards customers) and the means of achieving that aim are appropriate and necessary, which is for the referring court to ascertain.

Source: Achbita v G4S (C-157/15)