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A ban on wearing headscarves in companies may be admissible, in the view of Advocate General Kokott

June 1st 2016

In case C-157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV, the first ever case in front of the Court of Justice of the EU concerning discrimination on the grounds of religion and belief, Advocate General Kokott issued her Opinion on 31 May 2016.

The Opinion states that if the ban on wearing the headscarf at the workplace is based on a general company rule which prohibits political, philosophical and religious symbols from being worn visibly in the workplace, such a ban may be justified if it enables the employer to pursue the legitimate policy of ensuring religious and ideological neutrality. The Advocate General’s Opinion is not binding on the Court of Justice, however, it is often followed by the Court.

Ms. Achbita worked as a receptionist in the company that provides security and guarding, as well as reception services. After having worked there for three years 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. She brought a case claiming discrimination on the grounds of religion and belief, supported by the Belgian equality body Unia (Interfederal Centre for Equal Opportunities), at the time Centre for Equal Opportunities and Combating Racism. The Belgian Court of Cassation, before which the case is now pending, has 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.

Advocate General Kokott suggests that the ban on wearing a headscarf at the workplace does not amount to direct discrimination based on religion. While it may amount to indirect discrimination, Advocate General Kokott opines that the policy may be justified by the legitimate aim of the company ‘to pursue religious and ideological neutrality’. Although the Advocate General points to the delicate nature of the proportionality test in such cases, she suggests that the measure appears to be appropriate and necessary to achieving the legitimate aims, ‘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’. The Opinion states that the employee ‘may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing’.

The Court of Justice will deliver the judgment at a later date and it is not bound by the Advocate General’s Opinion. However, this being the first religious discrimination case in front of the Court of Justice, its verdict might create a very strong and important EU-wide precedent. Should the Court’s judgment follow the Advocate General’s findings, it would have far reaching consequences and a potential chilling effect for future religious discrimination cases, setting very strong limits to freedom of religion and granting a wide margin of appreciation to Member States in applying the proportionality test in similar cases.

The Court of Justice’s press release (with a link to the full text of the Opinion) can be found here.