Thursday 2 June 2016

Muslims, headscarfs and direct discrimination

Thanks to Miranda de Savorgnani of Outer Temple Chambers for preparing this case summary
Is it direct discrimination for a private employer to prohibit a Muslim employee from wearing a headscarf in the workplace?

Not if the prohibition stems from a general neutrality policy, opines Advocate General Kokott ahead of the European Court of Justice's first judgment on religious discrimination under the Equality Directive, Achbita v Centrum voor gelijkheid van kansen en voor racismebestrijding.

Three years into her employment at a Belgian security company, a Muslim employee began to wear a headscarf at work despite a company rule which prohibited the wearing of any visible signs of political, philosophical or religious beliefs. She was dismissed and appealed through the courts to the Belgian Constitutional Court which posed the question to the ECJ.

AG Kokott considers that as the neutrality policy is not limited to religious beliefs, it could at most amount to indirect discrimination. Even then, it may be objectively justified as an occupational requirement, subject to a proportionality assessment based on the size and conspicuousness of the symbol, the nature and context of the employee's activity, and the national identity of the Member State concerned.

AG Kokott distinguishes this case from the finding of religious discrimination by the European Court of Human Rights in Eweida v United Kingdom, where a similar neutrality policy had not been applied consistently to individual employees.

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