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Can Employers ban headscarves at work?

10 May 2017

It has been widely reported that the case of Achbita and another v G4S Secure Solutions NV has given employers carte blanche to ban Muslim headscarves in the workplace without facing claims of discrimination. Indeed, right wing political parties throughout Europe hailed and appropriated the result with French presidential candidate, Francois Fillon declaring the judgment an ‘’immense relief’’ while the German AFD leader stated it ‘’sends out the right message’’. In actual fact, this was a much more nuanced judgment than these statements would suggest and certainly isn’t the ‘green-light’ for banning headscarves that has been suggested.

Ms Achbita was employed by the Belgian branch of security company G4S as a receptionist. After three years of working for the firm, she decided she wanted to begin wearing a headscarf. She was dismissed when she refused to remove it and the company claimed she had broken an unwritten rule that prohibited religious symbols. The court held that where an employer had a policy of maintaining religious, political or philosophical neutrality in customer-facing roles, this must be regarded as a legitimate aim and the dismissal was therefore deemed fair. What is absolutely crucial, and what many of the headlines decided to ignore was that this was a ban on all religious, political and philosophical symbols. The policy would have to have applied to the wearing of a cross, a turban or a Star of David, for example. This does, however, somewhat contradict the European Court of Human Right’s decision in 2013 which held that British Airways should not have required a Christian check-in employee to remove the cross they wore round their neck. The fact that this case was not referred to in Achbita has not gone unnoticed and it has been pointed out that this decision poses a potential conflict between the concepts of freedom of religion and non-discrimination.

However, it was noted that national courts should decide in each instance whether such a policy is appropriate or necessary. Much of the reporting on the case omitted the fact that the policy was only considered legitimate because it related solely to customer-facing roles. The decision had no bearing on the wearing of headscarves or other religious symbols in public or indeed in non-customer facing roles. Furthermore, the question of whether the employee could have been re-deployed in a non-customer facing position was not considered but would certainly be a relevant factor for any employer considering adopting such a policy or for any court determining whether the policy was fair. The ambit of this decision was therefore significantly more limited than was suggested by the media.

 

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It is crucial, therefore, that employers do not see this judgment as an opportunity to impose similar bans on the wearing of headscarves or any other kind of religious or political symbols. Such a policy requires careful consideration and the onus is on every employer to ensure they can justify their dress codes from a discrimination perspective.

For further information, please contact Sarah Hall, Partner in our Employment Team

Call: 0191 232 8345

Email: Sarah.Hall@hay-kilner.co.uk