Discrimination is a forever-evolving subject in Employment Law. John Cato provides an employment discrimination case law analysis of the recent ‘Headscarf Case’. It raises the issue of work attire and what constitutes ‘direct’ and ‘indirect discrimination’, which are vital for employers to understand.
Analysis of Achbita & Anor v. G4S Secure Solutions
You may recall that in Eweida v. British Airways Plc (2010), the Court of Appeal held that British Airways’ policy banning the wearing of a cross outside the uniform was not indirect religious discrimination – but the European Court of Human Rights ruled that the UK had failed to protect Mrs Eweida’s right to manifest her religious belief under Article 9 of the European Convention on Human Rights.
However, in Ms Achbita’s case, the European Court of Justice held that the headscarf band did not constitute direct discrimination as there was no evidence that Ms Achbita was treated differently from other workers. The ECJ said that where an employer had a policy of upholding political, philosophical or religious neutrality in roles dealing directly with customers, it must be considered a legitimate aim. This ruling derives from an employer’s freedom to conduct a business and allows limits to the freedom to manifest religion.
Case Outcome Summary – Legitimate Aim
In summary, a company can legitimately aim to promote a particular image and brand to its customers. Therefore, a female employee of Muslim faith being prevented from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion if the ban results from company policy prohibiting visible political, philosophical and religious symbols in the workplace and is not based on stereotypes or prejudice against a particular religion. It may, however, be indirectly discriminatory.
There is a difference between direct and indirect discrimination. If my shop is having a sale and due to customer crowding, I pin a sign on the door which says “no prams allowed”, possibly for health and safety reasons, that does not directly discriminate against women. However, the fact that 99% of those pushing prams in front of my shop are likely to be women means that it is probably indirectly discriminatory.
Therefore, to justify its decision, the company would have to take into account the type of activity the employee is undertaking, i.e.
- is it a customer-facing role
- what are the surrounding social circumstances
- the size and conspicuousness of the religious marking
Each case is decided on its merits, but here, the employer’s right to conduct its business succeeded against the employee’s right to manifest their religion.
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