Search

How can we help?

Icon

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.

Monica Atwal

Managing Partner

View profile

+44 118 960 4605

Chambers and Partners

The Clarkslegal team are commercial and good to work with. They get what our business needs and tell me what I need to hear.

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

Employmentbuddy.com 

About this article

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

Monica Atwal

Managing Partner

View profile

+44 118 960 4605

About this article

Read, listen and watch our latest insights

Pub
  • 05 March 2024
  • Privacy and Data Protection

How do I protect my business in the event of a personal data breach?

Don’t let your business fall victim to personal data breaches. Join Louise Keenan and Rebecca Dowle, for a quick overview of how to protect your business.

Pub
  • 05 March 2024
  • Privacy and Data Protection

AI Podcast: AI and Intellectual Property

In the second of our three-part ‘AI Podcast’ series, Jacob Montague and Lucy Densham Brown, will be exploring how artificial intelligence (AI) interacts with intellectual property rights (IP rights).

art
  • 04 March 2024
  • Corporate and M&A

Treasury Shares – An Opportunity to be Treasured

Under section 658 of the Companies Act 2006 (‘CA 2006’), there is a general rule against companies acquiring and owning their own shares.

art
  • 28 February 2024
  • Commercial Real Estate

Hidden risks in serviced office agreements

This is usually a fully furnished and equipped office space that is managed by a facility management company and made available for short-term or long-term rentals to businesses, varying from one week to a year, or even longer.

art
  • 27 February 2024
  • Employment

Changing Attitudes to Menopause

We have set out some answers to the frequently asked questions that employers ask when considering how to support a menopausal employee.

art
  • 22 February 2024
  • Employment

Time to take the heat off menopausal women

On 22 February 2024, the EHRC released guidance and resources for employers designed to help employers understand their legal obligations in relation to supporting workers experiencing menopausal symptoms.