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Could Cameron be saved by a German and a headscarf?



The Advocate General of the European Court of Justice recently issued her opinion in Achbita and Another v G4S Secure Solutions NV, a Belgian case brought by an employee alleging direct religious discrimination against her employer, a private company (G4S), which had prohibited its employees from 'wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them' whilst on duty. Ms Achbita, a practicing Muslim who had worked for G4S for a number of years and during that time had only worn a hijab outside of work, was dismissed after she started wearing a hijab whilst at work in direct contravention of G4S's policy.

The Belgian courts did not uphold the claim, leading it to advance all the way up to the ECJ. Advocate General Juliane Kokott (who is of German descent – although that is of course irrelevant to her extensive and unquestionable experience!) has set out her view that, as direct discrimination requires one person to be treated less favourably than another on the grounds of the specified characteristic, G4S's prohibition could not constitute direct discrimination as it applied to all religious symbols/expression of religious beliefs by its employees, regardless of the religion. Indeed, the only difference in treatment which arose as a result of the prohibition was between employees who wanted to make some kind of expression of their religious belief and those who did not, which AG Kokott quite correctly concluded could not satisfy the test for less favourable treatment that has arisen in relation to a particular religion.

This finding of itself is not surprising. However, AG Kokott did go on to consider the question (which had not been put by Ms Achbita) of whether the prohibition could constitute indirect discrimination, on the basis that it would have a disproportionately greater impact on individuals of certain faiths whose religions were more likely to require them to wear symbols of their faith. In this respect, AG Kokott concluded that, whilst the ban could in principle constitute indirect discrimination, in the particular circumstances of this case – where G4S was providing security and reception services to different public and private customers and felt it was "absolutely crucial" that it was seen as being entirely neutral on matters such as religion in the provision of its services – the ban could be justified as a proportionate means of achieving a legitimate aim. This novel focus on the potentially legitimate aim of religious neutrality, which does not immediately sit entirely comfortably with previous case law championing religious diversity and tolerance (at least insofar as allowing reasonable expressions of faith in the workplace), appears to open the door to a broadening of the scope of European judicial reasoning in the matter of employer obligations in relation to expressions of faith. Perhaps most fascinatingly, AG Kokott's opinion was framed quite explicitly against the acknowledgment that Europe is experiencing an "influx of third-country migrants", suggesting that judicial reasoning may finally be awakening to the growing political disquiet across Europe on the subject of immigration.

It is important to note that AG Kokott's opinion is not binding on the ECJ (even if the ECJ does usually follow the opinions of its AG), and of course it is questionable whether this case will be heard amongst the cacophony of the Leave/Remain melee. However, with David Cameron's career requiring every vote the Remain campaign can get, he may be hoping that this case (in the absence of a mishap involving Boris Johnson and a Routemaster) will help push him over the line.

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