Posted on Jul 29, 2016
Most employers will be aware that the Equality Act protects employees from being discriminated against on the grounds of their religion. Direct and indirect discrimination are two ways in which religious discrimination can manifest itself.
The UK law on discrimination stems from an EU Directive, therefore, all EU countries similarly protect against discriminatory conduct and it is often difficult for courts to determine whether an indirectly discriminatory rule or practice is justifiable. In short, what is a legitimate aim?
A difference of opinion
In the recent cases of Bougnaoui and another v Micropole Univers and Achbita and another v G4S Secure Solutions NV both considered whether a ban on religious clothing in the workplace was discriminatory or if it could be justified as a legitimate occupational requirement. Interestingly, the 2 different Advocate Generals reached different decisions on similar facts.
Bougnaoui and another v Micropole Univers concerned an IT engineer (B) who was asked to remove her Islamic headscarf while visiting a client. The employer later received a complaint from the client about B’s appearance because B had refused to remove her headscarf and B was dismissed for refusing to comply with her employer’s instruction. The French national court found that the restriction was discriminatory because there was no justification for imposing the restriction. The headscarf did not interfere with the way that B way able to conduct her role, therefore, the ban was not imposed to achieve a legitimate aim the reason for implementing the ban was simply to appease the client. The Advocate General (who issues a preliminary opinion before the Court of Justice of the European Union decides) held that it was direct discrimination on the grounds of religious belief and therefore could not be justified.
Conversely, in Achbita and another v G4S Secure Solutions NV, the Belgian court held that G4S’ ban on wearing any religious, political or philosophical symbols while at work was not discriminatory. Whilst Ms Achbita was prevented from wearing her Islamic headscarf in accordance with this rule, the Belgian court found this was not direct discrimination because the policy was equally applied to all employees. Furthermore, the ban was not indirectly discriminatory because it was legitimate for G4S’ to pursue a neutral corporate image and not affiliate itself with any religion or belief. A different Advocate General held that it was not direct discrimination but even if it was it fell within the genuine occupational requirement exemption.
Both cases have now been referred to the Court of Justice of the European Union (CJEU). The eagerly awaited CJEU decision will be the first on religious discrimination, and will prove instructive for future cases concerning religious discrimination.
What should employers do?
Noele McClelland is a specialist Employment Lawyer. If you are concerned about discrimination in the workplace or wish to find out more information, please contact Noele on 01382 229111 or email email@example.com or alternatively contact a member of the Employment Law team.