The Achbita doctrine confirmed, but mitigated

Filip Dorssemont (UC Louvain, Belgium)

On July 15, 2021, the Court of Justice ruled for the third time on a headscarf ban. The judgment IX v. Wabe eV and MH Müller Handels GmbH provided the Court with an opportunity to re-assess the Achbita doctrine. The Court both confirms and mitigates this doctrine.

In IX v. Wabe eV and MH Müller Handels GmbH v. MJ, two cases were treated. A child care worker wishes to return to her workplace on two occasions after a period of parental leave. The employer instructs her to remove that headscarf. This instruction is related to an internal regulation that is Achbita-proof. The rule prohibits the wearing of visible political, philosophical or religious signs in the workplace. It applies only to the teachers who have contact with the children and the parents. The lady is sent back twice as a disciplinary measure and gets two disciplinary warnings

The second case position involves a sales assistant cashier in a store who at some point appears at work wearing a headscarf. At first, the employer resolves this by giving her another position where she could wear her headscarf. In June 2016, the employer asks her to remove her headscarf in that position as well. The employer rushes to adopt an internal regulation within the month, which prohibited the wearing of large, conspicuous political, philosophical or religious signs at work. Thereupon, in vain he orders the lady to resume her duties without wearing such large and conspicuous signs

The Court of Justice orders and paraphrases the preliminary questions received in the following order of precedence.

The first question concerns the question whether the introduction of such an internal rule constitutes direct discrimination on the grounds of religion or belief within the meaning of this Directive for employees who follow certain dress codes because of religious commandments. The Court unequivocally denies that question in line with the Achbita judgment.

The second question, according to the Court, relates to the issue of whether the indirect discrimination that such a rule could generate could be justified by an employer's desire to pursue a policy of neutrality towards its customers or users in order to meet their legitimate expectations. Here the Court mitigates the Achbita doctrine. It notes that such a policy must meet a genuine need on the part of the employer, which it must demonstrate by reference to, among other things, the legitimate expectations of its customers or users and the adverse consequences that it would suffer in the absence of such a policy, given the nature or context of its activities.

The Court now also builds in some objectivity for the legitimate objectives that justify indirect discrimination. The Court literally states: "That being said, the mere desire of an employer to pursue a policy of neutrality – while in itself a legitimate aim – is not sufficient, as such, to justify objectively a difference of treatment indirectly based on religion or belief, since such a justification can be regarded as being objective only where there is a genuine need on the part of that employer, which it is for that employer to demonstrate.”

The Court does makes it abundantly clear that such genuine need cannot be demonstrated by hiding behind subjective customer complaints or discriminatory customer demands. The notions of nature or context of the activities appear in the provision on “occuptional requirements” justifying direct discrimination. It is therefore logical that the same concepts should be given a similarly restrictive interpretation in the context of indirect discrimination. However, the Court’ use of the word adverse effects introduces a very mercantile dimension to a balancing of interests.

Employers will in fact have to indicate what underlying purpose the “neutrality policy” serves. In another part of the judgment, the Court mentions as an example of legitimate objectives of a neutrality policy the avoidance of social conflicts and “a neutral attitude towards customers”.

The third question examined by the Court concerned whether a kind of neutrality policy “light” could be tolerated, whereby a ban would apply only to the wearing of large, conspicuous signs expressing political, philosophical or religious beliefs.

The Court's answer is categorical. Indirect discrimination resulting from an internal rule of a company which prohibits the wearing of visible signs of political, philosophical or religious beliefs at work, with the intention of guaranteeing a policy of neutrality within the company, can only be justified if the prohibition applies to any visible manifestation of a political, philosophical or religious belief.

In the fourth and last part of the judgment, the Court synthesizes two preliminary questions in order to reach a very fundamental point: the relation between the freedom of religion and the principle of non-discrimination. This discussion is linked to the scope of Article 8 of Directive 2000/78, which allows for provisions that are more favourable to the protection of the principle of equal treatment.

In this regard, the Court ruled that national provisions protecting religious freedom may be taken into account as more favourable provisions within the meaning of Article 8(1) of the Directive when assessing whether a difference in treatment based indirectly on religion or belief is appropriate.

The reliance on this article suggests that provisions guaranteeing freedom of religion allow for a more generous protection of citizens who believe they are victims of discrimination on the basis of religion even if the resulting discrimination could be allowed by the Directive. In this respect, Article 9 ECHR, which in my modest opinion has been interpreted more generously in favour of workers wishing to express their convictions at work, might be a lever to save workers wearing a headscarf. National provisions protecting freedom of religion may also bring relief.