Case update (2): Religious discrimination – dress code

What do we already know?

In our June 2016 Newsletter Case update (2): Religious discrimination – dress code we updated you on Advocate General Kokott’s Opinion in Achbita and another v G4S Secure Solutions NV, available here.

Advocate General Kokott’s Opinion was that employers can prevent female Muslim employees wearing a headscarf at work if the prohibition stems from a general neutrality policy.

In the above case the employer, G4S, had a policy that ’employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them’. This was viewed by Advocate General Kokott as a blanket ban which applied to all religions equally and had been implemented consistently. There was also an element of neutrality because the rule applied to political and philosophical beliefs, not just religious ones.

What’s new?

A new Opinion has been given by another Advocate General in relation to a ban on wearing headscarves at work.  However, this Advocate General’s Opinion contradicts the Opinion given in Achbita and another v G4S Secure Solutions NV above.

Summary:  Can employers prevent female Muslim employees wearing a headscarf at work?

No, says Advocate General Sharpston in Bougnaoui and another v Micropole SA available here.

Facts:  Ms Bougnaoui, a Muslim woman, worked as a design engineer for Micropole SA, a company operating in France. When she was recruited, Micropole made it clear that, due to the customer-facing nature of her role, she would not be able to wear her headscarf at any time. Following a site visit, a customer complained that Ms Bougnaoui had worn her headscarf and requested that she not do so in future. When Micropole raised this issue with Ms Bougnaoui, she refused to comply with the customer’s wishes and so Micropole dismissed her.

Ms Bougnaoui claimed religious discrimination before a Parisian labour court. She was unsuccessful and her appeal was dismissed. On further appeal, the Court referred a question to the CJEU (formerly the ECJ), asking whether, on the assumption that Ms Bougnaoui’s treatment was discriminatory, it could be justified as being based on a “genuine occupational requirement”.

Advocate General Sharpston gave her opinion that a workplace ban on employees wearing visible signs of religious belief when in contact with customers is direct discrimination on grounds of religion or belief and that there is no “genuine occupational requirement” justification.

Advocate General Sharpston thought it was difficult to envisage circumstances, other than those related to serious health or safety concerns, in which a blanket ban on wearing visible signs of religious belief could be justified. The hijab did not affect the performance of the employee’s work and the employer in this case appeared to be relying purely on commercial interests based on the preference of its clients.

Furthermore, Advocate General Sharpston thought that if this were to be seen as a case of indirect discrimination, it is unlikely that the requirement would be proportionate. However, this was a question for the national court.

Implications:  Given the two very conflicting opinions given in this case and Achbita (see What do we already know above), the decisions of the CJEU in the two cases will be eagerly awaited.  The CJEU is due to give judgment in both cases towards the end of the year so watch this space…

Of particular interest in this case is that Advocate General Sharpston has sought to widen the concept of direct discrimination to encompass not only less favourable treatment because of a person’s religion, but less favourable treatment because of a person’s manifestation of their religion. This is significant because there is no general defence of objective justification to a claim of direct religious discrimination and would leave UK employers with little or no defence to a claim  in respect of a ban on wearing visible signs of religious belief.