European Court finds rules prohibiting the wearing of Islamic headscarf do not constitute direct discrimination

However, it is not an “occupational requirement” preventing a finding of discrimination if an employer takes into account the wishes of a customer to no longer have the employer’s services provided by a worker wearing an Islamic headscarf.

The European Court of Justice (ECJ) has made its first findings and provided previously absent guidance, in two separate cases, on the circumstances in which the banning of the wearing of Islamic headscarves in the workplace would be unlawful as discrimination.

Achbita v G4S Secure Solutions (the G4S Case)

In the first case, Ms Achbita, a Muslim, was employed as a receptionist by G4S. At the time of Ms Achbita’s recruitment there was an unwritten rule within G4S that prohibited employees from wearing any (not just Islamic headscarves) visible signs of their political, philosophical or religious beliefs in the workplace. During Ms Achbita’s employment, this rule was incorporated into G4S’s written workplace regulations and she informed G4S that she intended to wear a headscarf to work. G4S told her that she would not be allowed to do so because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contracts with its customers.

Ms Achbita continued to insist on wearing a headscarf and was dismissed.  She challenged that dismissal in the Belgian courts, which asked the ECJ; does the prohibition on wearing an Islamic headscarf, which arises from a general/blanket internal rule, introduce a difference of treatment that is directly based on religion or belief, in this case Ms Achbita’s Islamic faith (i.e. does it constitute direct discrimination)?

The ECJ found that G4S’s internal rule covered any religious beliefs without distinction. The rule treated all employees in the same way, by requiring them all to dress neutrally and it was not applied differently to Ms Achbita as compared to other G4S employees. It therefore did not constitute direct discrimination.

The ECJ noted, however, it is possible the Belgian national court might find the internal rule introduces a difference of treatment that is indirectly based on religion or belief, if the rule results in employees adhering to a particular religion or belief (for example, Muslims) being put at a particular disadvantage (i.e. it could constitute indirect discrimination), but not if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary.

Whilst emphasising that the national court hearing the case has sole jurisdiction to determine whether, and to what extent, the internal rule meets those requirements, the ECJ provided guidance in that respect.

1. It stated that an employer’s desire to project an image of neutrality towards its customers is legitimate, notably where the only workers involved are those who come into contact with customers.
2. In addition, the ban on the visible wearing of signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner.
3. In this instance, it was also necessary to ascertain whether the prohibition covers only G4S workers who interact with customers. If that was the case, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued.
4. It should also be ascertained whether it would have been possible for G4S to offer Ms Achbita a post not involving any visual contact with those customers, instead of dismissing her.

Bougnaoui v Micropole Univers (the Micropole Case)  

In the second of the separate cases, prior to being recruited by Micropole, Ms Bougnaoui was informed by a representative of Micropole at a student fair that the wearing of an Islamic headscarf might pose a problem when she was in contact with customers of the company.  Micropole nonetheless employed Ms Bougnaoui as a design engineer and she wore an Islamic veil to work.  Following a complaint from a customer, Micropole asked her not to wear a veil in future.  Ms Bougnaoui objected and was subsequently dismissed.  She challenged her dismissal in the French courts.

The French court asked the ECJ; can the willingness of an employer to take account of the wishes of a customer no longer to have that employer’s services provided by a worker wearing an Islamic headscarf be considered a ‘genuine and determining occupational requirement’ so as to rule out discrimination?

The ECJ found that, if Ms Bougnaoui’s dismissal was based on non-compliance with an internal rule prohibiting the visible wearing of signs of political, philosophical or religious beliefs, the national court would need to determine whether the conditions set out in the G4S case are satisfied. If the dismissal of Ms Bougnaoui was not based on the existence of such an internal rule, the willingness of an employer to take account of a customer’s wish to no longer have the employer’s services provided by a worker who wears an Islamic headscarf cannot be justified as it does not constitute a genuine occupational requirement so as to rule out discrimination.

Comment

Although these cases are widely being reported in the general media as European law allowing the banning the wearing of Islamic headscarves in the workplace, the effect of them will not be so far reaching as to allow all such rules. Employers should therefore exercise caution when introducing or implementing similar rules and employees should not take it as granted that this latest development in the case law necessarily means any such rules which apply to them are lawful.      

NEIL GILL

15 March 2017

This update is for general guidance only.  Legal advice should be sought before taking action in relation to specific matters.