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Prohibiting the hijab deemed not discriminatory by Advocate General

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By Patrick Stewart

After an Employment Tribunal claim progressed through the Belgian court system, the Belgian Appeal Court referred the following question to the ECJ: does EU discrimination law allow for the prohibition of a hijab where an employer has a blanket ban on all religious dress? The ECJ has yet to give a final decision on the matter but the Advocate General Kokott has opined yes.

The background to the case is as follows: Ms Samira Achbita was employed at G4S, a private company that provides security and reception services to clients. Three years after the commencement of her employment and soon after the introduction of the new dress code, Ms Achibita informed her employers that she would begin to wear her hijab to work. G4S therefore dismissed her for refusing to comply with the dress code.

The A-G’s decision centred on the fact that the employer in question had a dress code which prevented employees from wearing any visible signs of their religious or political beliefs. Addressing the question of religious direct discrimination, The A-G Kokott distinguished this case from others which discussed ‘immutable physical features’ such as race from the wearing of a headscarf which she described as a ‘mode of conduct based on subjective decision’. Taking a very strict interpretation of direct discrimination she argues that a blanket ban on religious attire cannot discriminate between religions. She makes the point that her position would be different if the ban ‘were proved to be based on stereotypes or prejudice in relation to one or more specific religions or even in relation to religious beliefs generally’.

On the question of indirect discrimination, the A-G assessed whether there was a genuine ‘occupational requirement’ and whether the practice was proportionate. An example of an occupational requirement would be asking employees to wear suits or protective wear. She found that a desire to engender a neutral environment could be an occupational requirement. Invoking Article 16 of the Charter of Fundamental Rights, she averred that the employer ‘must be allowed a degree of discretion in the pursuit of its business’ and ‘part of that freedom is the employer’s right, in principle, to determine how and under what conditions the roles within its organisation are organised and performed and in what form its products and services are offered’. Interestingly the AG referred to the client-facing role of the employee and therefore the increasing need for neutral dress.

Looking at the proportionality of the ban, the AG refers to various factors which she feels are pertinent. The first is the size and conspicuousness of the religious symbol; comparing the hijab to a small cross or other similar emblem. The second is the employee’s role. The third is the context in which she had to perform the activity. The fourth is the national identity of the Member State involved. The latter consideration is an interesting one as it highlights this ever prevalent issue of Member state autonomy.

Whilst this is not a legally binding decision and we would not advise implementing such a dress code in the immediate future, there are some practical points which we can take from this decision. The first, perhaps an obvious one, is to exercise caution when disciplining or dismissing an employee who refuses to comply with a dress code for religious or political reasons. The second is that a dress code or policy that explains the purpose of and enforces neutrality will most likely be looked upon more favourably by the courts. In addition, it seems probable that, at least in the private sector, the EU courts will recognise the importance of affording an employer some discretion. This opinion also elucidates this issue of member state autonomy: using France as an example the A-G states that their secularism has ‘constitutional status’ and therefore must be taken into consideration. It would be interesting to see how the A-G’s judgment would be different had the dismissal taken place in the UK.

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