Islamic headscarf ban may not be discriminatory

The European Court of Justice (ECJ) has today ruled for the first time on the wearing of Islamic headscarves in the workplace.

In the case of Achbita v G4S Secure Solutions the Court ruled that a ban of visible signs of political, philosophical and religious beliefs will not be direct discrimination if it is applied to the manifestation of beliefs without distinction.

While such a ban could amount to indirect discrimination, which was left to the Belgian national court to decide, the ECJ stated that the desire to project an image of neutrality to private and public sector customers could be a legitimate aim. If the only workers involved were those coming into contact with customers, it could also be considered necessary for the legitimate aim, provided it is consistently and systematically applied. However the Belgian court would also have to consider whether G4S could have offered Ms Achbita a role which was not customer-facing.

In the second case of Bougnaoui v Micropole SA, the employee had been told not to wear the headscarf because a customer had complained. Ms Bougnaoui was eventually dismissed when she refused to comply. The ECJ ruled that the French national court would have to consider whether there was a blanket rule such as the one in the Achbita case and whether, whilst potentially indirect discrimination, it was objectively justified. If not, then there was the question of whether there was a ‘genuine and determining occupational requirement’. The Court ruled that such a requirement must be objectively dictated by the nature of the activities or the context.  Where an employer wants to take into account a customer’s wishes not to have a worker wearing such a headscarf, this would be purely subjective and not covered by the exception.

Today’s judgment brings some welcome clarification because last year these two cases about the wearing of Islamic headscarves at work appeared to produce conflicting opinions from two different Advocates-General in the ECJ.

Importantly the Court has ruled that the term ‘religion’, which is protected under EU discrimination law, refers both to the fact of holding a religious belief and the manifestation of that belief in public. This means that arguments over whether employees have a ‘choice’ in wearing particular items of religious clothing is largely irrelevant.

In resolving the apparently conflicting Opinions, the ruling also shows that context is all-important.

In the Belgian case, Ms Achbita was a receptionist and her employer G4S had an unwritten rule (which it later put in writing) that employees would not wear any visible religious, political or philosophical signs or symbols. Because this rule applied to the manifestation of any belief of any kind, the Court found that it could not be direct discrimination as all employees were treated the same. It could still be indirect discrimination, where an individual of a certain religion or belief is put at a particular disadvantage compared with other employees, and it was sent back for the Belgian court to decide whether this could be ‘objectively justified’, which is a potential defence to an indirect discrimination claim.

However, the ECJ gave a strong steer that as long as the rule was systematically and consistently applied, and it applied only to customer-facing staff, in the circumstances it was likely to be objectively justified. It suggested, though, that the Belgian court would need to consider whether Ms Achbita could have been moved to a non-customer-facing role in order to avoid dismissing her.

By contrast, in the French case, a customer had complained about Ms Bougnaoui wearing an Islamic headscarf, and following her refusal to remove it, she was eventually dismissed. It was not clear whether there was a similar rule to G4S’s – i.e. all employees were treated the same and not allowed to wear visible religious, political or philosophical signs or symbols. If there was no such rule, then it is likely to have been direct discrimination which cannot usually be justified. If there was such a rule, when it returns to the French court it will need to consider whether it was consistently applied and only in customer-facing roles as for the Belgian case.

However, there is also a potential exception which justifies discrimination if there is a genuine and determining occupational requirement (for example, an acting role that must be played by a woman, or, in the UK, certain jobs which are for the purpose of an organised religion). The Court ruled the exception could not apply in the Bougnaoui case, because the requirement must be objectively dictated by the nature of the activities or the context. In this case, an employer taking into account a customer’s wishes was purely subjective.

Employers will welcome some degree of clarity, although in the UK we tend not to place such an importance on secularism as countries like France. However, it is highly significant that both holding a religious belief and the manifestation of that belief in public has been recognised by the ECJ as protected.

In addition, employers who want to enforce a politically, philosophically and religiously neutral dress code will need to tread very carefully. By its very nature, what is ‘neutral’ can be subjective, and down to a specifically Western cultural interpretation. As one of the Advocates-General pointed out in her opinion, what is the position on Oxbridge ties and football shirts? Would ‘neutral’ extend to not wearing poppies or symbols in support of cancer research? If the ban is not sufficiently neutral and applied to all employees equally, then UK employers could be left in a tricky position. It is also worth noting that if an employer was found to be discriminating directly the occupational requirement defence in the UK is narrower than that under the EU Directive and so it may not help them.