Advocate General Juliane Kokott has published her opinion in Achbita & Anor v G4S Secure Solutions NV  CJEU C-157/15.
G4S Secure Solutions NV is a Belgian company that provides security, guarding and reception services. Samira Achbita, a Muslim, worked as a receptionist for G4S; and after three years she insisted that she should be allowed to wear a hijab at work. G4S prohibits employees from wearing any visible religious, political or philosophical symbols at work and, consequently, dismissed her. The Belgian Court of Cassation, before which her wrongful dismissal appeal is now pending, asked the Court of Justice for a preliminary ruling clarifying the prohibition under EU law of discrimination on the grounds of religion or belief.
A G Kokott takes the view that there is no direct discrimination on the ground of religion where a Muslim employee is banned from wearing a 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 one or more particular religions or against religious beliefs in general. If that is the case, there is no less favourable treatment based on religion.
Though the ban may constitute indirect religious discrimination, it may be justified in order to enforce a legitimate policy of religious and ideological neutrality pursued by the employer insofar as the principle of proportionality is observed. She notes that the proportionality test is a delicate matter and that the CJEU should grant the national authorities, in particular the national courts, a measure of discretion which they may exercise in strict accordance with EU rules.
In her view, it is ultimately for the Belgian Court of Cassation to strike a fair balance between the conflicting interests, taking into account all the relevant circumstances: 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. She has no doubt that, in principle, the ban at issue is appropriate for achieving G4S’s legitimate objective of ensuring religious and ideological neutrality and necessary in order to implement company policy; and it has not been possible to identiy Iess intrusive but equally suitable alternatives for achieving the aim pursued. Nor does the ban unduly prejudice the legitimate interests of the female employees concerned and must therefore be regarded as proportionate.
She proposes that the CJEU respond to the Belgian Court of Cassation’s request for a preliminary ruling as follows:
“(1) The fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion within the meaning of Article 2(2)(a) of Directive 2000/78/EC if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination based on religion under Article 2(2)(b) of that directive.
(2) Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard.
In that connection, the following factors in particular must be taken into account:
– the size and conspicuousness of the religious symbol,
– the nature of the employee’s activity,
– the context in which she has to perform that activity, and
– the national identity of the Member State concerned.”
This is the first of two similar cases: the other, Bougnaoui and ADDH (Case C-188/15), is a reference from France about an employee who wore an Islamic headscarf, was told by her employer to remove it while visiting a client after the client’s staff complained about her appearance and was dismissed after she refused to do so. It will be interesting to see if the Advocate General in that case delivers a similar Opinion. An Opinion by an Advocate General does not bind the Court – and we await the judgment in Achbita with interest – but it tends to be predictive of the final ruling in a very high proportion of cases.
EU Law Radar carries an excellent note on the background to Bougnaoui. Makbool Javaid suggests on the blog of the Chartered Insitute of Professional Development, in EU headscarf ‘opinion’ problematic for UK courts, that the Opinion in Achbita could be problematic:
“the AG has decided that banning Islamic headscarves at work is essential, and therefore legitimate, to protect G4S’ and its customers’ image. This seems to be at odds with Eweida. If public image is so important, then employers will have to be able to produce persuasive evidence to support the argument.”