Let’s get one thing clear at the outset. The European Court of Justice has not said that it is OK to ban Muslim employees from wearing headscarves. It really hasn’t.
But the decision in Achbita v G4S Secure Solutions NV is nevertheless important and controversial. Ms Achbita was dismissed from her job as a receptionist because of her insistence on wearing an Islamic headscarf when she was at work. The employer had a policy of ‘neutrality’ which required employees to refrain from wearing any visible signs of their political, philosophical or religious beliefs in the workplace.
What the ECJ has decided is that the dismissal of Ms Achbita in pursuance of that policy was not direct discrimination on the grounds of religion or belief. The Court based that conclusion on the fact that the rule in issue applied to all employees and all visible signs of political, philosophical or religious beliefs ‘without distinction’. There was no evidence that Ms Achbita was treated differently to any other worker.
Now I’m not entirely happy with that reasoning. The employer objected to fact that Ms Achbita dressed in a way that identified her as a Muslim. The fact that it would also have dismissed a Sikh employee wearing a Turban, a Jewish employee wearing a kippah or a Christian wearing a crucifix is beside the point – and if anything, makes it worse. I think it is a red herring to say that the policy treats everyone the same – it is consciously aimed at people with particular religious beliefs. Of course, it is also consciously aimed at those with philosophical or political beliefs but that is hardly comparable. Wearing a T-shirt with a slogan is not the same thing as wearing something that you believe to be a requirement of your faith.
I can accept that this is a tricky issue – and so perhaps the best way of looking at a policy like this is to consider indirect discrimination. We have an apparently neutral policy – ‘don’t wear anything that identifies your religion, political beliefs of philosophy’, which causes a particular disadvantage to people who share a protected characteristic – like being a Muslim. The issue under the Equality Act 2010 is then whether the employer can show that its policy is a ‘proportionate means of achieving a legitimate aim’. The way in which this is approached by the ECJ is to ask whether the means adopted by the employer of achieving the aim are ‘appropriate and necessary’.
For reasons that are not entirely clear, the ECJ was not asked about indirect discrimination by the Belgian court, but it nevertheless thought it would be useful to give some guidance.
The Court said that a desire to display a policy of political, philosophical or religious neutrality ‘must be considered legitimate’. Further, translating that policy into a rule about how employees dress is appropriate – providing the policy is pursued in a ‘consistent and systematic manner’. As to whether the policy is ‘necessary’ the ECJ said that that would depend on whether it was limited to employees in a customer facing role. If it was, then the policy would be doing no more than was necessary to achieve the legitimate aim. The Court suggested that the Belgian court could then consider whether, instead of being dismissed, Ms Archbita could have been offered a role that did not involve interacting with customers.
Personally I’m not convinced that hiding Muslim employees away from customers is the best way to go here. In fact I have a problem with the whole ‘neutrality’ question. Excluding anyone from a customer facing role if they are visibly of a particular faith doesn’t seem very neutral to me. I certainly can’t see the argument working in Britain. Our approach to equality is based more on diversity than neutrality and I can’t imagine a tribunal looking favourably on an employer sacking an employee who is visibly Muslim, Sikh or for that matter visibly anything.
Neutrality has a cultural meaning and significance in Belgium and some other European countries that it does not have in Great Britain (Northern Ireland is a special case where the idea of a ‘neutral’ workplace is a key part of the fair employment regime). So just because the ECJ thinks that this Belgian employer has established a legitimate aim, that does not mean that a British Tribunal should also accept a similar policy as being legitimate.
There are of course reasons why particular items of religious dress may be inappropriate for the workplace – see the 2007 case of Azmi v Kirklees Metropolitan Borough Council for an example of an employer legitimately objecting to an employee wearing a veil at work. But I would expect a British Tribunal to focus on the practical impact of the clothing in question, rather than the message it sends. I struggle to think of jobs in which wearing a headscarf would cause genuine practical problems.
So my view is that a policy which ‘bans’ headscarves at work will be unlawful. We could write a thesis or two about whether it would amount to direct or indirect discrimination, but the result is the same. You shouldn’t ban employees from wearing headscarves (or turbans, or crosses or kippahs) unless those items cause genuinely prevent the work from being done properly or safely. In the vast majority of cases, they won’t.