Ms Archbita was a practising Muslim and receptionist in Belgium for G4S. G4S operated a policy which banned all items of religious, political and philosophical clothing from being worn on duty.
For the first three years of her employment, Ms Achbita wore an Islamic headscarf strictly outside of working hours, but then became intent on wearing it to work and was consequently dismissed.
Her claim for wrongful dismissal on grounds of discrimination was dismissed by the Belgian Labour Court and was eventually referred to the ECJ for a preliminary ruling. The question for consideration was whether G4S' policy was directly discriminatory under the relevant European Directive.
The AG considered that the policy was not directly discriminatory because there was nothing to suggest that Ms Archiba was treated less favourably. The policy banned all visible religious symbols without distinction, not just headscarves.
Although previous ECJ rulings had interpreted direct discrimination broadly, this was because they concerned 'individuals' immutable physical features or personal characteristics such as gender, age or sexual orientation'.
The AG appeared to distinguish discrimination on the grounds of religion or belief from other forms of discrimination, due to the element of control people have over the way in which they manifest their beliefs.
The AG also argued that even if direct discrimination were to apply, an employer must be allowed a degree of discretion in the pursuit of its business. It is not unreasonable to apply a dress code to receptionists and, therefore, the ban laid down by G4S may be regarded as a 'genuine and determining occupational requirement'. G4S' policy was a legitimate and proportionate means of achieving their aim of neutral client interactions. Their diverse client base was found by the AG to justify the ban as the only effective option.
The AG did indicate that G4S' blanket ban may constitute indirect discrimination. However, such discrimination may be justified, subject to the principle of proportionality, in order to enforce a policy of religious and ideological neutrality.
One could be forgiven for thinking that this case has given employers in the UK greater leniency in deciding uniform policy. However, there are several factors which mean that the AG's opinion should be treated with some caution:
It is likely that most employers in the UK will adopt more flexible dress codes than G4S did in Belgium. If you are considering a blanket ban on all items of religious clothing then this stills runs the risk of being indirectly discriminatory in the UK unless there are very clear and proportionate reasons to justify it.