he case of Achbita v G4S Secure Solutions NV is a Belgian case concerning a Muslim woman, working as a receptionist, who was dismissed for refusing to remove her headscarf whilst at work. She claimed unfair dismissal and discrimination on the grounds of religion or belief. The Belgian Court of Cassation, before whom her wrongful dismissal appeal is pending, has asked the European Court of Justice (ECJ) for a determination. The Court is tasked with deciding whether a rule forbidding all staff from wearing any visible political, religious or philosophical symbols could lead to direct discrimination against Muslims who wish to wear a headscarf at work. This is the first case of discrimination on the grounds of religion or belief which has reached the ECJ and it has therefore been widely reported.
The Advocate General (AG) has, however, provided an opinion ahead of the ruling of the ECJ. In basic terms the AG submitted that the prevention of wearing a headscarf where the employer’s rule prohibits all employees from having on show any outward signs of political, philosophical or religious belief will not constitute direct discrimination under the EU Employment Equality Directive. The AG then goes on to declare that the ban, nevertheless, may constitute indirect religious discrimination although it may be justified to enforce a legitimate policy of religious and ideological neutrality pursued by the employer as long as the proportionality test is observed. That means that consideration must be given to the size and conspicuousness of the religious symbol, the nature of the employee’s activity, the context in which she performed her duty and the national identity of the Member State.
A different AG has now given a contrasting opinion in a similar case, Bougnaoui v Micropole SA. In this case the employee had been told when she was 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 a headscarf and asked that she did not do so in the future. When this was raised with her she refused and was dismissed. She was unsuccessful in the French Courts and her case was referred to the ECJ. In this case the AG found that Ms Bougnaoui’s dismissal was linked to the rule prohibiting the wearing of religious signs. On this basis she was 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.
Employers must remember that individuals have the right to manifest their religious beliefs under the European Convention of Human Rights. An interference with this right was demonstrated by Eweida and others v United Kingdom where the UK was held to have failed to protect Ms Eweida’s right to wear a discreet cross outside her uniform. This failure did not extend to Mrs Chaplin, a nurse who wished to wear a crucifix at work, on the basis that her employer’s restrictions were in place to protect the health and safety of nurses and patients and so were not disproportionate.
In the Bougnaoui case the AG stated that for the dismissal to be lawful the policy would have to amount to a “genuine and determining occupational requirement.” The AG found that the requirement for Ms Bougnaoui to remove her headscarf was not a “genuine and determining occupational requirement” that was justified. The AG noted that Micropole SA 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.
The decision poses interesting questions given its divergence from the opinion given in Achbita where the AG found that a blanket ban on all religious and philosophical symbols could be objectively justified with reference to the business’ interests and customer facing nature of the business. The AG in the Bougnaoui case disagrees noting that “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 judgement in both cases later this year. Hopefully the decision of the ECJ will provide some clarity.