Professional May 2017

REWARD INSIGHT

Discrimination, absence, waiver

Nicola Mullineux, senior employment specialist for Peninsula, reviews decisions in three cases

Achbita v G4S Secure Solutions The European Court of Justice (ECJ) has handed down judgment on a question of whether a ban on Islamic headscarves was direct discrimination. In this case, the claimant was a receptionist for G4S in Belgium and was permanently contracted to work for a third party. The claimant informed G4S that she had decided to start wearing a hijab at work but they told her this would breach its unwritten rules on neutrality which applied during contact with clients. G4S then amended their written rules on workplace dress to include a rule that the wearing of any symbols which expressed religious, political or philosophical beliefs were banned at work when in contact with clients. The claimant refused to attend work without wearing a hijab and she was dismissed. The claimant claimed religious discrimination in the Belgian Labour Court and questions were referred to the ECJ on whether her treatment was direct discrimination. The ECJ decided that a ban on wearing an Islamic headscarf which has arisen from an internal rule imposing a blanket ban on the wearing of any religious, political or philosophical symbols in the workplace was

not direct discrimination because the rule applied without distinction and treated all employees in the same way. ...the policy was restricted to those who came in to contact with customers only The direct discrimination question was the only question asked of the ECJ but they decided to give guidance on the issue of indirect discrimination. The court reiterated that a blanket ban policy can be indirectly discriminatory if the neutral rule disproportionately disadvantaged people of a particular religion. However, employers can objectively justify indirect discrimination by showing they have a legitimate aim and their means of achieving the aim are appropriate and necessary.

freedom to conduct a business and the policy was restricted to those who came in to contact with customers only. When considering whether the means of achieving the aim of neutrality was proportionate, the ECJ said this was for the Belgian Labour Court to decide but they would need to determine whether the policy applied to employees only when they were in contact with customers. If it did, then it had to be considered strictly necessary for the purpose of achieving the aim. They gave guidance that the court would also have to consider whether it would have been possible for G4S to offer the claimant a position not involving contact with customers rather than dismissing her, i.e. was the dismissal strictly necessary for the employer to do to achieve their aim of neutrality. O’Brien v Bolton St Catherine’s Academy The Court of Appeal has decided a case concerning when an employer can dismiss an employee on long-term sick leave. The claimant started employment in 2005 with her job title changing to director of learning ICT in 2009. In March 2011, the claimant was assaulted by a pupil. She

The ECJ judged that the aim of displaying religious, political and

philosophical neutrality towards customers must be considered legitimate because the wish to project neutrality related to the

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| Professional in Payroll, Pensions and Reward | May 2017 | Issue 30

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