We recently posted a blog on the case of Achbita v G4S (which can be found here), in which the Advocate General gave the opinion that a ban on all religious, political and philosophical symbols did not amount to direct discrimination against a Muslim woman who wished to wear a headscarf. She noted that it could be indirectly discriminatory but was objectively justified.
A different Advocate General has now given a contrasting opinion in the similar case of Bougnaoui v Micropole SA, concluding that dismissing an employee for wearing an Islamic headscarf at work, in breach of an instruction not to, was directly discriminatory. This opens up further debate on the wearing of religious clothing and symbols in the workplace.
In Bougnaoui, the employee had been told when recruited that she would not be able to wear her headscarf at all times due to the customer facing nature of her role. Following a site visit to a customer, the customer complained about her wearing of the headscarf and requested she not do so in future. When this was raised with her, she refused to comply with the customer’s wishes and was dismissed. She was unsuccessful in her claim of religious discrimination in the French courts and her case was referred to the European Court of Justice (ECJ). The question for the ECJ was whether, presuming this treatment was discriminatory, whether it could be justified as a ‘genuine and determining occupational requirement.’
It was not clear what the terms were applied to Ms Bougnaoui in terms of prohbiting the wearing of her headscarf. She argued that it applied to the wearing of her headscarf when in contact with customers, whereas Micropole alleged that there was a general ban which applied to all religious signs when visiting a customer. The AG found that, regardless of what the policy was, it was clear that Ms. Bougnaoui’s dismissal was linked to the provision prohibiting wearing religious signs. Although Ms Bougnaoui was not dismissed because she was Muslim, the AG was of the view that the relevant Directive extends to manifestations of religion or belief in providing protection from direct discrimination. It was clear that Ms Bougnaoui’s dismissal was linked to the manifestation of her religious belief. On this basis, she had been treated less favourably than other employees in a comparable situation as another employee not wearing anything in manifestation of his or her religion would not have been dismissed. Micropole had therefore directly discriminated against her.
In order for the dismissal to be lawful, the policy would have to amount to a “genuine and determining occupational requirement”. The AG concluded that it did not. She noted that this exception should only be available in very limited circumstances and not used to justify a blanket exception for all the activities carried out by an employee. The AG gave examples of health and safety cases where particular religious attire may present a danger, where prohibiting the wearing of the attire would be justified. The AG found that Micropole were relying on commercial interests and the wishes of a client to justify discrimination, but direct discrimination cannot be justified on the grounds of financial loss. Further, while Micropole has the freedom to conduct a business, that might be subject to protecting the rights of others, in this case the right of Ms Bougnaoui not to be discriminated against on the grounds of her religion. The AG therefore found that the requirement for Ms Bougnaoui to remove her headscarf was not a genuine and determining occupational requirement which was justified, noting that to allow the legislation to be interpreted so that businesses could justify discrimination on the basis of commercial grounds or interaction with clients would not be right.
The AG also goes on to consider indirect discrimination, in the event that the ECJ disagrees with her that there was direct discrimination. In this regard, she concluded that the policy could be indirectly discriminatory, which can be justified if the policy is a proportionate means of achieving a legitimate aim. She noted that the interests of the employer’s business constitutes a legitimate aim, and the key issue in a given case will be proportionality. She notes that in a customer facing role, a ban may be proportionate if it prohibits the wearing of religious apparel which covers the entire face and eyes, whereas this same ban may not be appropriate in a non-customer facing role.
This decision poses interesting questions, given its divergence from the opinion given by the Advocate General in the Achbita v G4S case. In that case, the AG found that a blanket ban on all religious and philosophical symbols could be objectively justified with reference to the business’s interests and the customer facing nature of the business. That would appear to directly conflict with the decision reached in this case. Indeed, the Achbita opinion has been the subject of criticism, as it was not clear what in particular about a customer facing role made it necessary that the employee was not identified with any particular religion. There was also some criticism of the suggestion by the AG that the employee’s religion could be ‘left at the door’ while in the workplace. The AG in the Bougnaoui case appears to disagree with this, noting ‘it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.’
The ECJ is still to give its judgment in both cases later this year, and it remains to be seen whether it will follow the respective opinions of the Advocates General. Given the divergences of opinion, agreement with the AG in both cases could result in conflicting precedent and uncertainty. It is to be hoped that the decisions of the court provide some clarity on the issue.