The European Court of Justice has given a judgment in a case where a Muslim employee was barred from wearing her head dress by G4S. How did the Advocate General decide?

Background

The Equal Treatment Framework Directive (which underlies equality laws across Europe) allows discrimination where this is based on a characteristic relating to a protected ground (i.e. not direct discrimination), provided such a characteristic “constitutes a genuine and determining occupational requirement”.

This exception was not enacted in UK law, where the “related to” exception only applies in respect of disability. In UK law, the genuine occupational requirement exception is not so readily available.

However, the issue is obviously relevant in the UK, and we have reported on a recent case against British Airways (Eweida) where the European Court of Human Rights held Mrs Eweida’s right to manifest her religious belief under Article 9 of the European Convention on Human Rights had been breached when she was barred from wearing a crucifix at work.

The present case (Achbita v G4S) was heard by the European Court of Justice, however, and not the European Court of Human Rights, and they came to a quite different conclusion.

The Advocate General of the ECJ’s reasoning was that G4S’s desired objective of religious and ideological neutrality was a legitimate one and that the ban was necessary in order to achieve this. It was, in other words, a “determining occupational requirement” under the Directive.

On the second question of whether or not the requirement was proportionate, the ECJ noted that whilst other protected characteristics such as skin colour, sex, and ethnic origin could not be influenced by the individual, manifestation of religious belief could, and a degree of moderation could be expected of the employee in their expression of it.

Implications

The case would seem to leave religious discrimination in a different, inferior category, from discrimination on other protected grounds such as sex or race.

The reasoning of the Advocate General is also open to some criticism because, for instance, it may well not be an option for a Muslim not to cover their head. Indeed, in the Eweida case, BA had an exception to its policy where there was a “mandatory scriptural requirement”.

This is an opinion of the ECJ’s Advocate General which still needs to be ratified by the ECJ. Although this usually happens, this case may be one of the rare exceptions to the rule. We will report further when that decision is in.