Headscarf ban not direct discrimination

06 July 2016

A company had a rule banning the wearing of anything that was a visible sign of political, philosophical or religious beliefs (a ‘neutrality ban’). A Muslim employee, who began wearing a headscarf to work, was eventually dismissed. The European Court of Justice is soon to release its judgment of the case...

Samira Achbita v G4S Secure Solutions NV

Ms Achbita was a Muslim employee who began wearing a headscarf to work. The company had a rule banning the wearing of anything that was a visible sign of political, philosophical or religious beliefs (a ‘neutrality ban’). She firmly intended to wear her headscarf and was eventually dismissed.

During the course of her case, the European Court of Justice was asked to decide if a prohibition on a female Muslim employee wearing a headscarf is not direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at work.

We don’t yet have the judgment, but we have the Advocate General’s opinion, which is usually (but not necessarily) a good indication of the way the decision will go. No direct discrimination, the Advocate General has said. That’s provided the ban isn’t founded on stereotypes or prejudices against a particular religion or religious beliefs generally.

It could be indirect discrimination, however. That said, an employer may be able to justify the discrimination in order to enforce religious and ideological neutrality. Whether that would be proportionate - another hurdle to clear - would depend on factors including the conspicuousness of the clothing or symbol, and the nature of the employee’s job.

The key message here is consistency of treatment, and having restrictions and requirements that are necessary and applicable across the board – not just to certain categories of workers.


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