Religious discrimination in the work place

The issue of religious discrimination in the work place is a sensitive one which employers need to consider carefully. As set out in the Equality Act 2010 it is unlawful to discriminate against individuals because of their religion or belief, or lack of religion or belief either directly or indirectly. Given the diversity of religions and beliefs in the EU, the topic of how best employers can integrate employees from different backgrounds in the workplace is a highly relevant one. Tricky questions arise of how much diversity employers should accommodate and how much conformity employers are permitted to expect from those adhering to a religion or holding strong beliefs.

In the recent cases of Achbita[1] and Bougnaoui[2], the CJEU was asked to consider two separate cases where employees, Ms Achbita and Ms Bougnaoui, had been banned from wearing Islamic headscarves in the work place and if this amounted to religious discrimination under the EU Directive 2000/78.

 

Achbita and Bougnaoui

Achbita v G4S Secure Solutions

Ms Achbita was employed by G4S as a receptionist. After three years of working for the company she claimed she should be able to wear an Islamic headscarf during working hours. G4S had a policy refusing to permit employees from wearing any visible religious, political or philosophical symbols in the work place. Ms Achbita insisted she should be allowed to wear a headscarf and was subsequently dismissed. Ms Achbita, a Muslim employee, brought proceedings challenging her dismissal, arguing she had been discriminated against on the grounds of her religious belief.

The law:

Importantly, under Article 1 of the Directive 2000/78, the Directive aims to provide:

“a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.”

Article 2 goes on to say:

“For the purposes of this Directive, the 'principle of equal treatment' shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.”

Article 2 (2) (a) of the Directive 2000/78 sets out:

“direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1”

In the case of Achbita, following Ms Achbita’s complaint of discrimination the ECJ was asked by a Netherlands Court to consider the interpretation of Art 2(2)(a) of the Directive and if it allowed a company to ban a female, Muslim, employee from wearing a headscarf at work.

The ECJ held that the ban on wearing an Islamic headscarf, in this case, did not constitute direct discrimination within the meaning of Art 2(2)(a). In arriving at their preliminary ruling, the ECJ considered the company’s aim of neutrality and ‘blanket ban’ that all workers were not allowed to wear any visible religious symbols in the work place. It was found the ban did not amount to direct discrimination because all employees were treated the same way, therefore employees were not treated less favourably.

The ECJ did however consider that such a rule might amount to indirect discrimination where the ban on wearing any visible religious, political or philosophical symbols led to a difference of treatment, based indirectly on religion or belief. However, where the company has a ‘legitimate aim’ that is ‘necessary’ and executed in an ‘appropriate’ way, a difference in treatment would not necessarily amount to indirect discrimination.

The decision in Achbita garnered concern that it weakens the role of the Courts to balance both the rights of employees and employers by favouring the freedom of a company to conduct their business over individual’s religious beliefs. From an employer’s perspective Achbita highlights the importance for employers who have bans on religious symbols or clothing to have clear written policies in place to show evidence of neutrality across the board. Contrastingly to Achbita, the ECJ took a different approach in considering another employer’s decision to ban an employee from wearing as Islamic headscarf in the case Bougnaoui.

 

Bougnaoui v Micropole SA

In the case of Bougnaoui, the issue of an employer taking into account the wishes of a customer no longer wanting to have the services of that employer provided by a worker wearing an Islamic headscarf was considered. Ms Bougnaoui was asked by her employer not to wear her headscarf when meeting with customers of the business and Ms Bougnaoui refused. She was subsequently dismissed from Micropole SA. Ms Bougnaoui challenged the decision of her employer to dismiss her stating it was a discriminatory act based on her religious beliefs.

Here the ECJ was again asked to consider Directive 2000/78, they were asked to give a preliminary ruling on whether a company’s ban on a Muslim employee wearing a headscarf at work could be considered a ‘genuine and determining occupational requirement.’

It was not obvious in the first instance whether the difference of treatment was based on direct or indirect discrimination. The ECJ decided it was firstly for the referring Court to consider if Ms Bougnaoui’s dismissal stemmed from non-compliance with an internal rule (as was the case in Achbita) and if so whether the conditions set out in the Achbita judgement had been met. Was the difference of treatment justified by the pursuit of a policy of neutrality? And if so, was it appropriate and necessary?[3]

The bigger consideration of whether an employer - acting on the wishes of a customer no longer wanting to have the services of that employer provided by a worker wearing an Islamic headscarf - was justified for the purpose of Article 4 (1) of the Directive 2000/78 would need to be considered if, however, Ms Bougnaoui’s dismissal was not based on an internal ‘neutral’ policy.

Article 4 (1) of the Directive is important here -

“Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

The ECJ concluded that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf could not be considered a ‘genuine and determining occupational requirement’ justifying discrimination.

 

Dreadlocks and Rastafarian Belief

A 12-year-old boy was recently told by his school to cut off his dreadlocks to adhere to the school’s uniform policy or he would be expelled. Fulham Boys School has a strict uniform policy and rules whereby boys are not allowed to have their hair longer than their collar and braids and dreadlocks are forbidden. The mother, Tuesday Flanders, claims the school asking her son to cut his hair amounts to discrimination, going against their family’s Rastafarian beliefs. The school is currently dealing with the complaint as a cultural issue rather than a religious one.

Interestingly the tribunal was asked to consider a complaint of belief discrimination involving dreadlocks and Rastafarian belief in Harris v NKL Automotive Ltd[4] in 2007. This case involved a company that required its drivers to have tidy hair. The Appellant, employee, was a Rastafarian who worked as a driver for the company. The Appellant complained of unfair dismissal, direct and indirect belief discrimination and victimisation. The EAT re-iterated the finding of the tribunal that there was no evidence that the company objected to dreadlocks. The company required employees to have tidy hair and the Appellant’s hair had been matted in an untidy way. It was found that if there is a possibility of dreadlocks being kept in a tidy manner the company’s requirement did not indirectly discriminate against those with dreadlocks.

It would be interesting to see, if the dispute against Fulham Boys School materialises into a tribunal claim and if so what the tribunal’s approach would be in addressing school bans on dreadlocks. On the face of it the facts of Harris v NKL Automotive Ltd are rather different in that there wasn’t a blanket bad on dreadlocks rather a requirement for ‘tidy hair’.

 

Religious discrimination

The discussion on religious discrimination in the work place is extremely current. Whilst the decision in Achbita shows employers have freedom to conduct their businesses, Bougnaoui shows that freedom only goes so far and the Directive 2000/78 prohibits an employer from discriminating against employees on the grounds of their religious belief. In Bougnaoui, the company’s decision to listen to the wishes of their client and ban Ms Bougnaoui from wearing a headscarf whilst dealing with clients could not be considered a ‘genuine and determining occupational requirement.’ Perhaps in Bougnaoui the 'principle of equal treatment’ and the fundamental aim of the Directive 2000/78 to combat discrimination was considered more than in Bougnaoui than Achbita. The decisions in both Achbita and Bougnaoui serve as an important reminder of the necessity for employers to have clear legitimate policies to show employees are treated the same way.

Complaints of religious discrimination in today’s diverse society continue and no doubt Employment Tribunals across the UK will be faced with big questions to answer, perhaps including whether a school requiring its Rastafarian student to cut off his dreadlocks amount to belief or religious discrimination.

 

Religious discrimination in the work place

The issue of religious discrimination in the work place is a sensitive one which employers need to consider carefully. As set out in the Equality Act 2010 it is unlawful to discriminate against individuals because of their religion or belief, or lack of religion or belief either directly or indirectly. Given the diversity of religions and beliefs in the EU, the topic of how best employers can integrate employees from different backgrounds in the workplace is a highly relevant one. Tricky questions arise of how much diversity employers should accommodate and how much conformity employers are permitted to expect from those adhering to a religion or holding strong beliefs.

In the recent cases of Achbita[1] and Bougnaoui[2], the CJEU was asked to consider two separate cases where employees, Ms Achbita and Ms Bougnaoui, had been banned from wearing Islamic headscarves in the work place and if this amounted to religious discrimination under the EU Directive 2000/78.

 

Achbita and Bougnaoui

Achbita v G4S Secure Solutions

Ms Achbita was employed by G4S as a receptionist. After three years of working for the company she claimed she should be able to wear an Islamic headscarf during working hours. G4S had a policy refusing to permit employees from wearing any visible religious, political or philosophical symbols in the work place. Ms Achbita insisted she should be allowed to wear a headscarf and was subsequently dismissed. Ms Achbita, a Muslim employee, brought proceedings challenging her dismissal, arguing she had been discriminated against on the grounds of her religious belief.

The law:

Importantly, under Article 1 of the Directive 2000/78, the Directive aims to provide:

“a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.”

Article 2 goes on to say:

“For the purposes of this Directive, the 'principle of equal treatment' shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.”

Article 2 (2) (a) of the Directive 2000/78 sets out:

“direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1”

In the case of Achbita, following Ms Achbita’s complaint of discrimination the ECJ was asked by a Netherlands Court to consider the interpretation of Art 2(2)(a) of the Directive and if it allowed a company to ban a female, Muslim, employee from wearing a headscarf at work.

The ECJ held that the ban on wearing an Islamic headscarf, in this case, did not constitute direct discrimination within the meaning of Art 2(2)(a). In arriving at their preliminary ruling, the ECJ considered the company’s aim of neutrality and ‘blanket ban’ that all workers were not allowed to wear any visible religious symbols in the work place. It was found the ban did not amount to direct discrimination because all employees were treated the same way, therefore employees were not treated less favourably.

The ECJ did however consider that such a rule might amount to indirect discrimination where the ban on wearing any visible religious, political or philosophical symbols led to a difference of treatment, based indirectly on religion or belief. However, where the company has a ‘legitimate aim’ that is ‘necessary’ and executed in an ‘appropriate’ way, a difference in treatment would not necessarily amount to indirect discrimination.

The decision in Achbita garnered concern that it weakens the role of the Courts to balance both the rights of employees and employers by favouring the freedom of a company to conduct their business over individual’s religious beliefs. From an employer’s perspective Achbita highlights the importance for employers who have bans on religious symbols or clothing to have clear written policies in place to show evidence of neutrality across the board. Contrastingly to Achbita, the ECJ took a different approach in considering another employer’s decision to ban an employee from wearing as Islamic headscarf in the case Bougnaoui.

 

Bougnaoui v Micropole SA

In the case of Bougnaoui, the issue of an employer taking into account the wishes of a customer no longer wanting to have the services of that employer provided by a worker wearing an Islamic headscarf was considered. Ms Bougnaoui was asked by her employer not to wear her headscarf when meeting with customers of the business and Ms Bougnaoui refused. She was subsequently dismissed from Micropole SA. Ms Bougnaoui challenged the decision of her employer to dismiss her stating it was a discriminatory act based on her religious beliefs.

Here the ECJ was again asked to consider Directive 2000/78, they were asked to give a preliminary ruling on whether a company’s ban on a Muslim employee wearing a headscarf at work could be considered a ‘genuine and determining occupational requirement.’

It was not obvious in the first instance whether the difference of treatment was based on direct or indirect discrimination. The ECJ decided it was firstly for the referring Court to consider if Ms Bougnaoui’s dismissal stemmed from non-compliance with an internal rule (as was the case in Achbita) and if so whether the conditions set out in the Achbita judgement had been met. Was the difference of treatment justified by the pursuit of a policy of neutrality? And if so, was it appropriate and necessary?[3]

The bigger consideration of whether an employer - acting on the wishes of a customer no longer wanting to have the services of that employer provided by a worker wearing an Islamic headscarf - was justified for the purpose of Article 4 (1) of the Directive 2000/78 would need to be considered if, however, Ms Bougnaoui’s dismissal was not based on an internal ‘neutral’ policy.

Article 4 (1) of the Directive is important here -
 

“Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.”

The ECJ concluded that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf could not be considered a ‘genuine and determining occupational requirement’ justifying discrimination.

 

Dreadlocks and Rastafarian Belief

A 12-year-old boy was recently told by his school to cut off his dreadlocks to adhere to the school’s uniform policy or he would be expelled. Fulham Boys School has a strict uniform policy and rules whereby boys are not allowed to have their hair longer than their collar and braids and dreadlocks are forbidden. The mother, Tuesday Flanders, claims the school asking her son to cut his hair amounts to discrimination, going against their family’s Rastafarian beliefs. The school is currently dealing with the complaint as a cultural issue rather than a religious one.

Interestingly the tribunal was asked to consider a complaint of belief discrimination involving dreadlocks and Rastafarian belief in Harris v NKL Automotive Ltd[4] in 2007. This case involved a company that required its drivers to have tidy hair. The Appellant, employee, was a Rastafarian who worked as a driver for the company. The Appellant complained of unfair dismissal, direct and indirect belief discrimination and victimisation. The EAT re-iterated the finding of the tribunal that there was no evidence that the company objected to dreadlocks. The company required employees to have tidy hair and the Appellant’s hair had been matted in an untidy way. It was found that if there is a possibility of dreadlocks being kept in a tidy manner the company’s requirement did not indirectly discriminate against those with dreadlocks.

It would be interesting to see, if the dispute against Fulham Boys School materialises into a tribunal claim and if so what the tribunal’s approach would be in addressing school bans on dreadlocks. On the face of it the facts of Harris v NKL Automotive Ltd are rather different in that there wasn’t a blanket bad on dreadlocks rather a requirement for ‘tidy hair’.

 

Religious discrimination

The discussion on religious discrimination in the work place is extremely current. Whilst the decision in Achbita shows employers have freedom to conduct their businesses, Bougnaoui shows that freedom only goes so far and the Directive 2000/78 prohibits an employer from discriminating against employees on the grounds of their religious belief. In Bougnaoui, the company’s decision to listen to the wishes of their client and ban Ms Bougnaoui from wearing a headscarf whilst dealing with clients could not be considered a ‘genuine and determining occupational requirement.’ Perhaps in Bougnaoui the 'principle of equal treatment’ and the fundamental aim of the Directive 2000/78 to combat discrimination was considered more than in Bougnaoui than Achbita. The decisions in both Achbita and Bougnaoui serve as an important reminder of the necessity for employers to have clear legitimate policies to show employees are treated the same way.
 

Complaints of religious discrimination in today’s diverse society continue and no doubt Employment Tribunals across the UK will be faced with big questions to answer, perhaps including whether a school requiring its Rastafarian student to cut off his dreadlocks amount to belief or religious discrimination.

 

Heather Platt


[1] Achbita and another v G4S Secure Solutions NV [2017] 3 C.M.L.R. 21

[2] Bougnaoui and another v Micropole SA [2017] 3 C.M.L.R. 22

[3] Achbita and another v G4S Secure Solutions NV [2017] 3 C.M.L.R. 21

[4] Harris v NKL Automotive Ltd 2007 WL 2817981