EMPLOYMENT

ECJ Uphold Headscarf Ban 

There have been a number of high profile cases considering religious expression within the workplace over recent years. None more so that the 2013 European Court of Justice’s (ECJ) judgment in Eweida & Others v United Kingdom where the ECJ concluded that British Airways refusal to allow Ms Eweida to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion. The latest instalment on this controversial topic came on 14th March with the ECJ’s decision in Achbita v G4S Secure Solutions NV.

This case involved Ms Achbita, a Muslim, who started to work for G4S as a receptionist in February 2003. During her employment there was an ‘unwritten rule’ within G4S that workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace.

In April 2006, Ms Achbita informed her line managers that she intended, in future, to wear an Islamic headscarf during working hours. In response, the management of G4S informed Ms Achbita that the wearing of a headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to G4S’s position of neutrality.

On 12 May 2006, after a period of absence from work due to sickness, Ms Achbita notified her employer that she would be returning to work on 15 May and that she was going to wear the Islamic headscarf. As a result on 29 May 2006, the G4S works council approved an amendment to the workplace regulations prohibiting employees from ‘wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’ in the workplace.

Ms Achbita was subsequently dismissed on 12th June 2006 due to her continuing insistence that she wished, as a Muslim, to wear the Islamic headscarf at work. She subsequently issued a claim for religious discrimination against G4S and the matter was referred to the ECJ to determine whether the Company’s blanket ban on visible or religious symbols constituted direct discrimination.

In its judgement the ECJ held that G4S’s policy did not amount to direct discrimination on the grounds of religious belief as it applied to all employees and all visible signs of political, philosophical or religious beliefs equally. Ms Achbita was therefore unable to evidence that she was treated differently than her colleagues.

The ECJ was not asked to deal with the issue of indirect discrimination i.e. whether a neutral provision, criterion or practice would put persons having a particular religion or belief at a particular disadvantage. It did however offer the view that ‘the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate’. It highlighted however that the question as to whether such a policy was ‘necessary’ was dependent on whether it applied to workers who interacted with customers only and suggested that if this was the case, the prohibition must be considered necessary to pursue the legitimate aim of neutrality.

This judgement is positive news for employers generally but in particular employers in Northern Ireland due to the need for neutral religious working environments under The Fair Employment and Treatment (Northern Ireland) Order 1998. For this reason the approach adopted in NI is likely to be more aligned to that taken in this case and may well differ to that in Great Britain. Renowned Employment law Barrister and commentator Darren Newman suggests that the ECJ’s approach does not mean a British Tribunal will follow a similar path as ‘Our approach to equality is based more on diversity than neutrality’.

Given the prevalence of litigation in this area we always recommend that you take specific legal advice regarding any policy of neutrality and in particular whether it could be considered a ‘proportionate means’ to achieve a legitimate aim.

If you or your business require advice in relation to discrimination in the workplace please contact Millar McCall Wylie on 02890 200050 and ask to speak with a member of our Employment Department

 



BREAKFAST SEMINAR- THE EMPLOYMENT ACT (NI) 2016

We are pleased to confirm that we will be hosting a breakfast seminar at our office at Imperial House, 4-10 Donegall Square East, Belfast at 9.30 am on Wednesday 10th May 2017 . At this time Jan Cunningham (Employment Partner) and Kevin Gallagher (Employment Solicitor) will consider the keys changes to be introduced on implementation of The Employment Act (Northern Ireland) 2016 and the practical implications for Employers in the workplace. This seminar is provided free of charge and refreshments will be provided on the morning.

Please note that we have limited places available for this seminar and therefore should you wish to attend please confirm your place by email to employment@mmwlegal.com

When reserving your place, please indicate if you have any access or dietary requirements.



 

 

 

 

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