I noted briefly in an earlier post – primarily on the French case of Bougnaoui – that the Belgian Cour de Cassation/Hof van Cassatie had handed down judgment in Achbita on 9 October 2017. The judgment is now available: so far as I can discover, in Dutch only.

Readers will recall that Ms Achbita was dismissed by her employer, G4S Secure Solutions nv, because she refused to comply with an instruction to remove her hijab when visiting the company’s clients. The Antwerp Labour Court [arbeidshof] had held that G4S was not in error because a normally diligent employer could not know whether or not a policy of neutrality breached the law against discrimination, on the basis that there were various social perceptions about religious manifestation in the workplace and that the anti-discrimination legislation was complex and the case-law inconsistent.

S. A. & Centrum voor Gelijkheid van Kansen en voor Racismebestrijding t. G4S Secure Solutions nv [2017] Hof van Cassatie van België Nr. S.12.0062.N, the Cour de Cassation upheld the finding of the Antwerp Labour Court that there had not been direct discrimination. However, it ruled that there could be an abuse of the right to dismiss and, therefore, unjustified indirect discrimination even in the absence of fault and even if the employer’s wrongful conduct had been committed unknowingly.

In principle, an employer could not be held liable under Belgian law for an abuse of the right to dismiss employees when the employer was not able to foresee that the dismissal was unlawful. However, the Cour de Cassation was of the view that, under the case-law of the CJEU, interference with a worker’s right to compensation for redundancy as a result of non-compliance with an employer’s injunction or prohibition amounted to impermissible discrimination under the Equal Treatment Directive and could not be subjected to the conditions that the fault had been proven and that there was no justification recognised by the applicable national law.

The Court upheld the decision of the Antwerp Labour Court on the issue of direct discrimination but annulled the remainder. It had been unnecessary for the lower court to look into the employer’s reasons for acting as it had; instead, it should have contented itself with assessing whether or not G4S’s policy of neutrality could be justified under anti-discrimination law. It referred the indirect discrimination claim to the Labour Court of Ghent for rehearing.

See also:

• Emmanuelle Bribosia: Ruling of the Belgian Court of Cassation (Cour de cassation) in the Achbita case.
• UNIA: The Achbita case before the court again.

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