Is it direct discrimination to ban wearing a headscarf in the workplace?

The question of whether it is direct and/or indirect discrimination for an employer to ban the wearing of a headscarf at work has been considered in two recent cases. In both cases the Advocate Generals ("AGs") deliberated over whether, because of a Muslim woman's religious beliefs, she was being treated less favourably than another person would be treated, by being asked not to wear the headscarf. It was also considered whether such a ban could be objectively justified.

In Achbita and another v G4S Secure Solutions NV the AG opined that it was not direct discrimination because the ban on headscarves arose from a "general neutral policy". The Belgian company's dress code banned all employees from wearing any visible religious, political or philosophical symbols in the work place. Ms Achbita was dismissed because she refused to abide by this policy by removing the headscarf. The AG considered that a neutral dress code policy did not amount to direct discrimination based on religion or belief.

Further, when considering whether it could amount to indirect discrimination, the AG thought that the policy may be objectively justified as a genuine, determining occupational requirement. This was because the employer had an objective of religious and ideological neutrality that applied to everyone, which was considered appropriate given the broad range of clients to whom the company provided services. The factors that were considered were the size and conspicuousness of the religious symbol, the nature of the employee's activity, the context in which she had to perform that activity, and the national identity of the member state concerned.

This opinion was particularly remarkable because it distinguished between protected characteristics which are intrinsic and those which are not. The AG stated that, "while an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing".

By contrast, in Bougnaoui and another v Micropole SA the AG in this case declined to follow the above decision. Here, a customer complained that Ms Bougnaoui was wearing her headscarf at work. When Ms Bougnaoui's employer asked her to remove it in order to comply with the customer's wishes, she refused and was dismissed as a result. The AG opined that an employee's dismissal for wearing a headscarf at work, in breach of a direct instruction, was directly discriminatory on grounds of religion or belief. Further, she thought it could also be indirect discrimination as it is unlikely that the requirement would be proportionate, although this would be for a national court to consider.

At this stage, neither opinion is binding. The ECJ is due to give judgment in both cases towards the end of the year. The prevailing mood within the legal profession is that the Bougnaoui decision is likely to prevail.  Either way, it is important for employers to be cautious when trying to implement neutral dress code policies given the potential of these to interfere with an individual's human right to manifest their religion.

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