Luxembourg: Muslim headscarf ban in the workplace may be admissible

About this case:

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Samira Achbita, a Muslim, worked as a receptionist for the Belgian company G4S Secure Solutions, which provides security and reception services. After having worked for three years for the company she insisted that she should be allowed to go to work in future wearing an Islamic headscarf. She was dismissed as a result, since G4S prohibits the wearing of any visible religious, political and philosophical symbols.

Supported by the Belgian Centre for Equal Opportunities and Combating Racism, she brought an action before the Belgian courts seeking damages from G4S. Her action was unsuccessful before the first two tiers of courts.

The Belgian Court of Cassation, before which the case is pending, made a request to the Court of Justice for a preliminary ruling seeking clarification of the prohibition under EU law of discrimination on the grounds of religion or belief.

In this week’s opinion, Advocate General Juliane Kokott took the view that there is no direct discrimination on the ground of religion where an employee of Muslim faith is banned from wearing an Islamic headscarf in the workplace, provided that that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudices against religions.

That ban may constitute indirect discrimination based on religion but could be justified in order to enforce a legitimate policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed.

The Advocate General said that ultimately it is for the Belgian Kassationshof to strike a fair balance in the the case between the conflicting interests, taking into account all the relevant circumstances of the case, in particular the size and conspicuousness of the religious symbol, the nature of Ms Achbita’s activity and the context in which she must perform her activity, as well as the national identity of Belgium.

He said there can be no doubt, in principle, that the ban at issue is appropriate for achieving the legitimate objective pursued by G4S of ensuring religious and ideological neutrality. The ban is necessary for the purposes of implementing that company policy. Less intrusive but equally suitable alternatives for achieving the objective pursued were not identified during the proceedings before the court.

Finally, so far as concerns proportionality in the narrow sense, in Advocate General Kokott’s view, the ban at issue did not unduly prejudice the legitimate interests of the female employees concerned and must therefore be regarded as proportionate.

He concluded that while an employee cannot “leave” his sex, skin colour, ethnicity, sexual orientation, age or disability “at the door” upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or his clothing. The measure of restraint which an employee can be required to exercise depends on a comprehensive assessment of all the relevant circumstances of the case in question.