The European Court of Justice (ECJ) has given its highly anticipated judgment in the joined cases of Bougnaoui and another v Micropole SA and Achbita and another v G4S Secure Solutions NV, both of which concerned claims of discrimination brought by female Muslim employees who were dismissed because they insisted upon wearing an Islamic headscarf at work despite their employers requiring them not to do so.
The EU Equal Treatment Directive prohibits direct and indirect discrimination based on a number of protected characteristics, including religion and belief.
Direct discrimination is prohibited outright and cannot be justified. However, the Directive allows for Member States to make limited exceptions to permit differential treatment based on a protective characteristic in certain occupations where, because of the nature of the occupational activities or the context in which they are carried out, the characteristic constitutes a ‘genuine and determining occupational requirement’.
Indirect discrimination – i.e. where a seemingly neutral rule puts people with a protected characteristic at a particular disadvantage – may be justified if the rule has a legitimate aim, and its application is a proportionate and necessary means of achieving that aim.
Case history in brief
A, a female Muslim, did not wear the headscarf when she began her employment as a receptionist for G4S in Belgium. However, she subsequently informed G4S that she had decided to start wearing the headscarf. This contravened G4S’s employee code of conduct, which provided that employees ‘are not permitted to wear any religious, political or philosophical symbols while on duty’. A was therefore dismissed. She brought a claim before a Belgian labour court. The case was referred to the ECJ.
B, a female Muslim who wore the headscarf, worked as a design engineer for Micropole in France. She was advised on recruitment that the role was customer facing and she would not be able to wear her headscarf at all times. A customer subsequently complained that she had worn a headscarf on a site visit and she was asked not to do so in future. B refused to comply with that request and was dismissed. She brought a claim before a Parisian labour court. The case was referred to the ECJ.
Prior to the ECJ’s judgment, two Advocates General had given conflicting opinions on whether, in the circumstances of each case, the employer’s prohibition of headscarves was discriminatory on the grounds of religion and belief.
In A’s case, the Court held that G4S’s prohibition of the wearing of any religious, political or philosophical symbols while on duty applied equally to all workers without distinction, and therefore did not constitute direct discrimination against A on the ground of her religion.
However, the Court held that the national court in Belgium would have to consider whether the prohibition, while apparently neutral, in fact put persons of a particular religion or belief at a disadvantage, such that it was indirectly discriminatory. If so, the Belgian court would need to determine whether the policy was nonetheless objectively justified by a legitimate aim and was an appropriate and necessary means of achieving that aim.
On this point, the Court considered that G4S’s desire to display a policy of political, philosophical or religious neutrality in relations with public and private sector clients was a legitimate aim. Within limits, the pursuit of such an aim would permit G4S to impose restrictions on employees’ freedom of religion. In the Court’s view, a policy prohibiting workers from wearing any visible symbols of political, philosophical or religious belief would be an appropriate means of achieving G4S’s aim provided that the policy was genuinely pursued in a consistent and systematic manner. Such a policy would be considered necessary for the purpose of achieving the aim if it was only applied to workers who had direct contact with G4S’s clients. It would be for the Belgian court to determine whether this was the case on the facts. When considering necessity, the Belgian court would also have to examine whether it would have been possible for G4S, without taking on an additional burden, to offer A an alternative position which did not involve direct contact with clients, as an alternative to dismissing her.
In B’s case, it was not clear from the facts available to the ECJ whether Micropole had in place a policy prohibiting the wearing of any visible sign of political, philosophical or religious beliefs. If there were such a policy, the national court in France would have to determine whether it was indirectly discriminatory and, if so, whether the policy was nonetheless justified by a legitimate aim and was an appropriate and necessary means of achieving that aim.
If Micropole did not have such a neutral policy in place, its decision to dismiss B when she insisted that she would wear the headscarf at work despite a client’s request that she remove it would amount to direct discrimination on the basis of her religion, unless Micropole’s requirement that she remove her headscarf could be said to fall within the "genuine and determining occupational requirement" exception. Here, the Court held that in order for the exception to apply, a requirement related to religion must be objectively dictated by the nature of the occupational activities concerned or the context in which they are carried out. It did not cover subjective considerations, such as an employer’s willingness to take account of the particular wishes of its clients or customers not to have services provided by a worker wearing an Islamic headscarf.
The ECJ’s decision that a neutral workplace dress code that prohibits the wearing of any visible sign of political, philosophical or religious belief does not constitute direct discrimination will come as a relief to employers.
However, the risk that such a policy could be found to be indirectly discriminatory against employees of certain religions still remains. For example, as the ECJ indicated in its judgment, if the employer’s aim is to demonstrate neutrality in its interactions with customers, a policy that prohibits the display of political, philosophical or religious symbols will go further than necessary if it is applied to all employees rather than being restricted to those who have direct customer contact.
That said, it is worth noting that the idea of visible or presentational ‘neutrality’ has greater cultural and political significance in Belgium, France and some other continental European jurisdictions than it does in the UK. Indeed, the UK’s approach to equality tends to favour diversity rather than uniformity. Given this, a UK employment tribunal may not look favourably on an employer that prohibited employees from having direct contact with clients or customers simply because, by dressing in accordance with the requirements of their faith, they were visibly identifiable as belonging to a particular religion. Instead, it is likely that UK employers wishing to justify a workplace dress code banning any element of religious attire would need to be able to demonstrate that the restriction was necessary for practical or safety reasons, e.g. a nurse being prevented from wearing her Christian cross on a necklace in case this was grabbed by patients.
Indeed, while the Court of Appeal in the Eweida case in 2010 was prepared to accept that a prohibition on visible non-mandatory religious symbols was justified for the protection of a company’s corporate image, the European Court of Human Rights subsequently held that the Court of Appeal had given that legitimate aim too much weight. Accordingly, should a tribunal be required to consider a similar prohibition in the future, its appropriateness and necessity would likely be subjected to more intense scrutiny.
How EEF can help
Members can find further information on discrimination law on our website – click here
Members who wish to review their existing workplace dress code or are considering introducing a new one can contact their regional adviser, who will be happy to assist.