The Achbita case before the court again

20 October 2017
Area of action: Employment
Grounds of discrimination: Religious or philosophical beliefs

‘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. 

‘Unia asked the Court of Cassation to overturn the ruling of the Antwerp labour court. Because the labour court did not test the dismissal against the antidiscrimination law, the Court of Cassation agrees with us. We want clear case law in order to know in which cases businesses can prohibit headscarves on the grounds of a neutrality policy,’ says Els Keytsman, Unia director.

Rationale of Cassation

Cassation finds that the arguments of the labour court to defend the dismissal are illegitimate. Thus, the Antwerp labour court argued that the G4S company was not in error, because a normally diligent employer cannot know whether a policy of neutrality is a violation of the antidiscrimination law. The labour court pointed out that various social perceptions exist on religious expression in the workplace and that the antidiscrimination legislation is complex and inconsistent case law exists.

Cassation now emphasises that in employment cases the court need not examine whether the employer is guilty of discrimination. Cassation stresses that an employer has civil liability as soon as the antidiscrimination law is violated. Thus the labour court should not have examined whether the employer committed an error or was negligent, but should have specifically tested G4S’s policy of neutrality against the possibilities for justification from the antidiscrimination law.

Need for further clarification

‘Because an employer remains liable even if it did not intend to violate the law, it is extra important that the courts clarify the matter,’ summarises Keytsman. ‘Unia has been focusing on guiding jurisprudence from higher courts for years. It is in everyone’s interest that we as a society know in advance under what conditions an employer can prohibit ideological symbols such as a headscarf,’ Keytsman continues.

Opinion of the European Court

The Court of Cassation itself had already asked the European Court of Justice how the antidiscrimination legislation should be applied for this case. The European Court ruled that the neutrality policy of G4S constituted an indirect distinction on the grounds of religion, whereby an employer has more possibilities for justification. The European Court sees it as freedom of enterprise if an employer wants to project a neutral image to customers.

The company must therefore have a consistent and systematic policy of neutrality that is applied in the same way to all employees regardless of religious convictions. Such a ban on wearing visible symbols may moreover only hold for employees who have visual contact with customers. In addition, an employer must see whether measures less drastic than dismissal are possible, taking account of the limitations intrinsic to the business and without having to bear an extra burden.

What now?

The case must now be retried before the Ghent labour court. The labour court must take account in this of what the Court of Cassation and the European Court have ruled.