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Contrary to the headlines, the European Court of Justice (ECJ) for the European Union did not rule that employers are able to ban headscarves at work. Rather, the judgement explains that a headscarf ban at work—which was part of a wider policy on religious neutrality—did not constitute direct discrimination. However, employers should not disregard the risk of the indirect discriminatory impact of such a policy. To further avoid such a claim an employer will have to objectively justify their approach, which involves identifying a legitimate aim that is implemented in a proportionate manner. In the Achbita case the ECJ ruled that an employer's desire to project an image of neutrality toward its customers was a legitimate aim, particularly where it only applies to workers in customer-facing roles.
The ECJ was asked to determine whether two cases involving the dismissal of women for each refusing to remove their headscarf at work amounted to religious discrimination. The French and Belgian cases were conjoined after separate Advocate Generals arrived at different conclusions on whether a headscarf ban amounted to direct discrimination. While Advocate General Kokott had previously said in Achbita that a headscarf ban did not amount to direct discrimination, Advocate General Sharpston reached the opposite conclusion in Bougnaoui. (Achbita v G4S Secure Solutions NV and Bougnaoui v Micropole Univers.)
Facts of Achbita and Bougnaoui
Ms. Achbita, a Muslim, was employed as a receptionist by G4S. At the time of Achbita's recruitment there was an unwritten rule within G4S that prohibited employees from wearing visible signs of their religious beliefs in the workplace.
Some three years after starting employment, Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, the management of G4S informed her that the wearing of the headscarf would not be tolerated as this was contrary to the position of neutrality in the unwritten rule that G4S adopted in its contact with its customers. After a period of absence from work due to sickness, Achbita notified her employer that she would be returning to work wearing the Islamic headscarf.
The G4S works council approved an amendment to the workplace regulations. These provided that "employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs." Achbita was subsequently dismissed because of her continuing insistence on wearing the Islamic headscarf at work. She challenged that dismissal in the Belgian courts.
Ms Bougnaoui, a design engineer was dismissed from an IT consultancy firm, Micropole, following a complaint from a customer who claimed his staff had been "embarrassed" by her headscarf while she was on their premises giving advice. Before taking the job she had been told that wearing a headscarf might pose problems for the company's customers.
The ECJ in Achbita ruled that G4S's policy did not amount to direct discrimination on grounds of religion because the workplace policy prohibited all religious symbols. The rule did not intend to treat one religion less favourably than another, since all employees were to be treated in the same way.
The court considered that G4S's rule could amount to indirect discrimination on the basis that it is more burdensome to Muslims than to others. However, in relation to justification, G4S's policy aim of protecting its image of neutrality was held to be a legitimate aim, particularly on the basis that it applied only to customer-facing employees. The question of whether the G4S policy was in fact justified would be for the French national court to decide.
In contrast, in the second case, the ECJ ruled that if an employer asks for a Muslim employee not to wear a headscarf due to subjective considerations such as a customer's preference rather than a general rule on neutrality, that is not a "genuine and determining occupational requirement." Article 4(1) should be interpreted restrictively and was not to be relied upon by employers as justification for following their customer's wishes. This argument is unlikely to have been made in the U.K. given the narrower circumstances in which a genuine occupational requirement under Equality Act 2010 can exist.
These cases were references from French and Belgian courts where different social and cultural norms to the U.K. affect their views on religious neutrality at work. In France for instance, public-sector workers are banned from wearing an Islamic headscarf at work. While cases relating to religious attire have been brought in the UK, we are not aware of any reported cases regarding a headscarf ban. In one case a school was held to be justified when they asked a teaching assistant to remove her veil when she was teaching children because of the impact this had on effective communication. And in another case involving a jilbab, an employer was justified on health and safety grounds in stating that any clothing worn should not present a trip hazard.
Employers who apply general bans in light of these recent EJC cases certainly reduce the scope for employees to argue direct religious discrimination in relation to the way in which they manifest their religion through their attire. Rules on clothing and dress codes at work can also avoid infringing the law on indirect religious discrimination, provided an employer can demonstrate the rules achieve a legitimate aim in a proportionate way.
However, employers should ensure that they are not too blinkered in their application of any such general rule or justification as a route to dismissing employees and, as highlighted in the Achbita case, should consider alternative noncustomer facing roles as an alternative that would enable the employee to wear the headscarf. Consideration of such "reasonable accommodation" is likely to reflect good employment practice as well as mitigate the risk of claims of religious discrimination.
Alison Woods is an attorney with CMS Cameron McKenna in Aberdeen, U.K. Anthony Fincham and Sarah Ozanne are attorneys in the firm's London office. © 2017 CMS Cameron McKenna. All rights reserved. Reposted with permission of Lexology.
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