Advocate General Kokott has given her opinion on whether a company's ban on employees wearing religious, political or philosophical symbols ("Symbols") while working was direct discrimination, in Achbita v G4S Secure Solutions NV. She thought not. The employee in question (a receptionist) was dismissed for wearing an Islamic headscarf at G4S in Belgium, which provides security and reception services to different public and private customers. G4S's rules banned employees from wearing Symbols while on duty.
Ms Achbita claimed she had been discriminated against. The Belgian courts, even on appeal, disagreed. The following (paraphrased) question was ultimately put to the European Court of Justice ("ECJ"): is banning female Muslim employees from wearing religious headscarves at work direct discrimination under EU Law, even where the employer bans all employees from wearing outward signs of political, philosophical and religious belief at work?
AG Kokott considered there to be no direct discrimination if the ban is founded on a general company rule prohibiting visible Symbols at work (not just based on stereotypes or prejudice). This was because the ban applied to all Symbols, without distinction. The only difference in treatment was between employees who wanted to give active expression to their belief and those who did not. She did not consider this to be less favourable treatment directly linked to 'religion'.
Kokott realised, though, that the ban could be indirect discrimination. Unlike direct discrimination, indirect discrimination can be justified (and, she thought, was justified on this occasion under the 'genuine and determining occupational requirement' exemption under EU Law). She considered it proportionate for employers to require compliance with a dress code if it gives effect to a strict policy of neutrality (apparently "absolutely crucial" here for the wide range of customers). This aim, borne from employers' freedom to run their businesses, was considered legitimate. The question of whether the policy caused undue prejudice to the employees, though, was left to the referring court to decide (although Kokott thought it likely to be proportionate). This decision should be based on the size and conspicuousness of the Symbol, the nature and context of the employee's work and Belgium's national identity. Commentators have already started questioning whether the legal hurdles here are lower than those of "absolute necessity" in previous crucifix cases.
The way Kokott mused over neutrality was interesting: "Some undertakings may consciously set themselves the goal of recruiting a colourful and diversified workforce and turn the very diversity that it showcases into its brand image. However, an undertaking — such as G4S in this case — may just as legitimately decide on a policy of strict religious and ideological neutrality". Query, however, how easy it really is for religious neutrality to go hand in hand with religious diversity and tolerance, which many UK employers have championed for years. One can see how the recruitment and retention of some Muslims may be negatively impacted by this opinion.
Kokott's opinion is just that – only an opinion – given in advance of the binding ECJ decision. Such opinions often influence judgments. This one will test the waters with both employees of faith and employers and there will almost certainly be heated opposition to it. Kokott acknowledged at the outset of her opinion that Europe is being "confronted with an arguably unprecedented influx of third-country migrants" at present. Her opinion has clearly not been reached in a vacuum, making it all the more surprising.
Whether this opinion will have any impact on undecided Brexit voters is anyone's guess. What we do know, however, is that employee dress codes can be far from straightforward, as seen in the recent debate around PwC's high heel saga, when a receptionist was allegedly sent home for not wearing heels. If you would like any assistance on your business's policies or compliance with equality law, please do not hesitate to contact a member of our team.