The Achbita case: clarity about the headscarf ban in the workplace
A general ban is not acceptable, the court imposes strict conditions.
A private company can only prohibit the headscarf for those workers who have visual contact with the customers. If the employer decides that the personnel need to have a neutral appearance, this policy must be applied in a coherent and systematic fashion, meaning not in response to a specific request from the customer. Finally, the employer must investigate whether employees who wish to openly wear religious insignia can be assigned to a different job, without any visual contact with the customers.
That is what the European Court of Justice ruled today. ‘As a result of this ruling, an employer can only prohibit religious, philosophical or political insignia if there is direct contact with customers. A general ban, and thus an actual headscarf ban, is not acceptable’, responded co-directors of Unia, Els Keytsman and Patrick Charlier. ‘The company must have a neutrality policy in place that is coherent and systematic and that is applied to all philosophical, religious and political insignia.’
Clarity
‘The decision of the European Court of Justice brings clarity. Up until now, the antidiscrimination laws left a lot of leeway for judges. That diverse jurisprudence in Belgium reflected the sensitivities about religion in our society. The ruling now explicitly defines how employers can handle religious diversity’, they said.
The ruling comes in response to two lawsuits about the Islamic headscarf. Both the Belgian Court of Cassation and the French Court of Cassation sought clarification from the European Court on the circumstances under which private companies could prohibit employees from expressing their religion in the workplace, by wearing a headscarf, for example.
Figures and studies
In 2016, Unia opened 79 cases for Muslims who reported discrimination in the workplace. Practising Muslims found themselves confronted with barriers in an employment market where a neutral presentation is often the norm. In that sense, the ruling now makes it clear what an employer can and cannot do in the name of neutrality.
A European study [1] found that in Belgium, 44 percent of the employers say that a headscarf can negatively influence the chances of selection. These figures are confirmed by Unia’s own research. ‘45 percent of the HR staff who took part in our large-scale study [2] admitted that a headscarf, for example, plays a role in the ultimate selection for a job.’
‘While, in fact, it's in everyone's interests for the fundamental rights of all jobseekers and employees to be respected as fully as possible, in all aspects of society’, added Keytsman and Charlier.
‘Freedom of religion remains the basic principle and any possible restrictions on this must be justified and proportionate. But religion cannot be a reason to refuse to carry out certain essential tasks at work, or for an individual to discriminate against colleagues or customers. The social partners have an important role to play within companies by drawing up the company regulations in such a way that the rights of all stakeholders, employers, employees and customers can be reconciled with one another’, they noted.
What next?
It is now up to the Belgian Court of Cassation to give a ruling, taking this European decision into account, along with other elements in the case. The decision will now need to be studied in order to determine the concrete consequences in the workplace.
Unia is calling to give employers, trade unions and the labour inspection authorities sufficient time to study this new jurisprudence from the highest European and Belgian courts, to review the existing company regulations and to amend them, as necessary, through social dialogue.
[1] Enar, study Forgotten Women, p.31
[2] ‘Diversity Barometer’ Work, p.73
See also
Comparable articles
What is the Achbita case?
In 2006, S. Achbita was fired when she started wearing a headscarf at work. The case came before the Labour Court of Antwerp (2009), the Court of Cassation (2015), the Court of Justice of the European Union (2017) and the Labour Court of Ghent (2020). Below you can find a full chronology.
More employment discrimination cases reported to Unia in 2017
Last year Unia opened a total of 2,017 cases of situations where people felt they were the subject of discrimination. This represents a 6% increase over 2016 (1,907 cases). Instances of employment discrimination were the most frequently opened cases at Unia.
Unia reacts to the report on discrimination by the Fundamental Rights Agency (FRA)
Out of all survey-respondents of North African and Turkish origin who experienced discrimination in the past year in Belgium, 20% said it had occurred on the job market, while the European average on this point is 12%. This figure was brought to Unia’s attention in the Second EU-MIDIS report by the European Union Agency for Fundamental Rights (FRA).
The Achbita case before the court again
‘The Achbita case must be retried. The Court of Cassation has overturned the previous ruling of the Antwerp labour court because it inadequately examined whether Ms Achbita’s dismissal was discriminatory,’ Unia says.