Headscarves and Religious Discrimination

Does the banning of a headscarf at work constitute direct religious discrimination?

No, held the CJEU in Achbita v G4S Secure Solutions (the full judgment is not available yet, only the press summary).

G4S in Belgium operated a policy of ‘neutrality’, banning all wearing of political, religious or similar signs. A Muslim employee announced she wanted to start wearing a headscarf; she was told she could not, and she was then dismissed.

The CJEU held that G4S’s policy did not amount to direct discrimination on grounds of religion because it prohibited all religious signs, so it was not treating one religion less favourably than another.

It also held that G4S’s rule introduced a difference in treatment which was indirectly based on religion, as Muslims are placed at a particular disadvantage. It held that an employer’s desire to project an image of neutrality was a legitimate aim provided it applied only to customer-facing employees, and – more interestingly – left open the question of whether it would have been possible to redeploy Ms Achbite into a non- customer facing role (rather than dismiss her).

In an accompanying case, Bougnaoui and anor -v- Micropole SA the CJEU held that if a customer asks for a Muslim employee not to wear a headscarf, that is not a ‘genuine and determining occupational requirement’.

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Harassment simply by asserting disability? – No

Can a Claimant successfully claim harassment by simply asserting s/he has a disability without establishing s/he is disabled under the Equality Act 2010?

No, held the EAT in Peninsula Business Services v Baker.

The Claimant was employed as a tribunal representative by Peninsula. In January 2014, he told his advocacy manager he had dyslexia. A psychologist’s report confirmed this and an occupational health report in August 2014 suggested he may be disabled.

Peninsula’s director of legal services grew concerned the Claimant was not devoting his time to his work and instructed external consultants to conduct covert surveillance.

The Claimant complained that being subjected surveillance constituted harassment on grounds of disability. The employment tribunal found for the Claimant but, acknowledging it was not asked to determine disability, found “on the basis that the Claimant may well have been disabled” that the trigger for the decision to engage in surveillance was an assertion of disability.

Overturning the decision, the EAT held that discrimination protection is not available to those who merely assert a disability. The protection applies only to those who have a disability, to those associated with a disabled person, or to those who are wrongly perceived to be disabled.

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