Dress codes, direct religious discrimination and genuine occupational requirements

Banning a Muslim employee from wearing her headscarf when in contact with clients was direct religious discrimination according to the Advocate General of the Court of Justice of the European Union.

In the French case of Bougnaoui v Micropole SA, the employee was a design engineer and practising Muslim and wore a headscarf which covered her head (but not her face), including when meeting clients of the business. Following a complaint by a client who had a ‘religious neutrality’ policy that they felt “embarrassed” by her headscarf and who requested that she not wear it in future, the employer asked the employee not to wear it to client meetings. The employee refused to comply with this instruction and was dismissed.

The Court of Justice of the European Union (CJEU) was asked to give a preliminary ruling on whether the employee’s dismissal amounted to direct religious discrimination.

The case is a reminder of Achbita and another v G4S Secure Solutions NV, on which we reported in June, where Advocate General Kokott delivered a surprising opinion that prohibiting employees from wearing any visible signs of political, philosophical or religious beliefs, as long as the prohibition was consistent among differing religious groups, would not amount to direct religious discrimination and would at most amount to indirect discrimination, which may be objectively justified as an occupational requirement, subject to a proportionality assessment.

However, the sharply contracting opinion of Advocate General Sharpston in Bougnaoui is that genuine and determining occupational requirements which would prevent the wearing of a visible sign of religious belief apply only to such matters as, for example, insisting that a male Sikh employee wear protective headgear where it was a health and safety requirement. The Advocate General’s opinion is that there was no genuine or determining occupational requirement in Ms Bougnaoui’s case and that the prohibition on direct discrimination extends to manifestations of religion or belief, such as Ms Bougnaoui wearing a headscarf.  The Advocate General’s conclusion is that it was clear that the employee had been a victim of direct discrimination on the grounds of religion or belief.

The Advocate Generals’ respective opinions in  Bougnaoui and Achbita are not legally binding until the CJEU gives its final Judgment in each case later this year. It is hoped that the CJEU Judgments will decide which of the two differing approaches is correct. For now, given the apparent contradiction in the opinions in the two cases, employers should continue to treat policies banning employees wearing any visible signs of political, philosophical or religious belief with extreme caution  and seek legal advice if they are intending to implement such a ban.

For futher information or support with religious discrimination claims, please contact our employment law team on employment@clarkslegal.com

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