Case update (2): Religious discrimination & headscarves

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What do we already know?

We updated you in our March 2017 Newsflash Religious discrimination & headscarves that the CJEU had heard the cases of Achbita v G4S Secure Solutions and Bougnaoui and another v Micropole SA and decided that if an employer:

  • has a policy of ‘neutrality’ (banning all wearing of political, religious or similar signs), this does not amount to direct discrimination on grounds of religion because it prohibits all religious signs and therefore is not treating one religion less favourably than another (Achbita v G4S Secure Solutions, available here); and
  • dismisses an employee for wearing an Islamic headscarf at work, in breach of its direct instruction following a customer’s objection to her wearing the headscarf, it is directly discriminatory on grounds of religion or belief (Bougnaoui and another v Micropole SA, available here).

We said that we would consider these decisions in more detail in our April Newsletter and, as promised, please see below.

Background facts:

1. Achbita v G4S Secure Solutions NV: the employee, Ms Achbita, a Muslim, was employed by G4S in 2003 as a receptionist working in Belgium. For the first three years of her employment, Ms Achbita wore a headscarf only outside of working hours and not whilst she was on duty.  However, in April 2006, Ms Achbita announced that for religious reasons she intended to wear a headscarf whilst on duty as well as outside of working hours. G4S pointed out that was at odds with the religious and ideological neutrality sought under an unwritten company policy. This policy of neutrality was crucial to G4S because of the variety of their customers and because of the special nature of their work characterised by constant face to face contact with external individuals.

With effect from 13 June 2006, it was incorporated into the G4S Employee Code of Conduct 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’.

Ms Achitba continued to wear her headscarf to work and was dismissed on 12 June 2006 because of her firm intention as a Muslim woman to wear the Islamic headscarf.

Ms Achtiba brought an action for damages for wrongful dismissal and/or discrimination against G4S. The Belgium Labour Court held that there had been no direct or indirect discrimination and that decision was upheld on appeal. During the course of a further appeal, the Belgian Supreme Court stayed the proceedings and referred a preliminary question to the CJEU, asking whether the headscarf ban amounted to direct discrimination under the Directive, where the dress code prohibited all employees from wearing outward signs of political, philosophical and religious beliefs at work.

Advocate General Kokott gave her Opinion that the dress code which included the headscarf ban did not amount to direct discrimination based on religion or belief. G4S’s ban was 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.  The only difference in treatment was between employees who wished to actively express a particular belief and those who did not. This did not constitute less favourable treatment that was directly and specifically linked to religion. In terms of indirect discrimination, such a rule was capable of justification in that G4S wanted to create an image of religious and ideological neutrality.

2. Bougnaoui v Micropole SA: 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, 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.

CJEU decision:

1. In Achbita, the CJEU noted that the company rule prohibited the wearing of visible signs of political, philosophical or religious belief and applied to all such manifestations of belief without distinction. The CJEU found that the ban was neutral and applied to all employees in the same way by requiring them to dress neutrally and, accordingly, was not directly discriminatory on the ground of religion or belief. There was no evidence that the individual was treated any differently to any other employee.

However, the CJEU noted that the rule could give rise to indirect discrimination, although this might be objectively justified. The CJEU gave some guidance on how the issue of justification should be approached. It said that the employer’s desire to project an image of neutrality in relations with customers could be a legitimate aim, and would be considered appropriate and necessary provided it was genuinely applied in a consistent and systematic manner and only covered customer-facing employees. The CJEU left open the question as to whether the employer should have offered Ms Achbita a non-customer-facing role instead of dismissing her.

2. In Bougnaoui, it was not clear whether the employer operated a similarly neutral policy as in Achbita. Nonetheless, the CJEU held that if there was no such general rule and the employer dismissed the employee in response to a customer’s objection to an employee wearing a headscarf, that treatment would be direct discrimination and the “genuine and determining occupational requirement” provisions in the Directive could not be relied on to defend such a claim. The CJEU made clear that those provisions only apply in very limited circumstances where the requirement related to religion is objectively dictated by the nature of the occupational activities concerned or the context in which they are carried out. They do not cover subjective considerations such as customer wishes.

Implications:

Although useful guidance, contrary to some media reports, these CJEU decisions don’t mean that you can always ban religious symbols, so long as your ban covers all religions and beliefs. 

Employers are instead left in the very difficult position of determining where the courts may draw the line between acceptable, and unacceptable, dress codes.  Inevitably cases will turn on their own particular facts. The central issue in most cases will be justification – whether the employer had a legitimate aim and whether the ban was proportionate.  For example, in the case of Eweida and others v United Kingdom (see our January 2013 case update available here), British Airways (BA) refused to allow an employee to wear a visible cross. The European Court of Human Rights indicated that BA’s desire to project a certain corporate image was a legitimate aim; but nonetheless found that its ban was disproportionate as there was no evidence that the wearing of items such as turbans and hijabs by other employees had any negative impact on BA’s brand.

Employers need to ensure a balance between the reason for any dress code and the disadvantage likely to be suffered by an employee. We recommend that you continue to consider your dress code or appearance policies carefully and treat employees’ requests to circumvent a rule for religious reasons sensitively and respectfully.

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