Ban on Islamic Headscarf Direct Religious Discrimination

An employer’s ban on a Muslim woman wearing a headscarf constitutes direct discrimination on grounds of religion, according to the Advocate General. 

Speedread

The Advocate General has given an opinion that an employer’s ban on a Muslim woman wearing a headscarf constitutes direct discrimination on grounds of religion. It could not be justified as being based on a genuine occupational requirement. The occupational requirement exception has to be interpreted strictly and cannot be used to justify a blanket ban for all the activities a given employee may potentially engage in. 

Facts 

In Bougnaoui v Micropole SA, Ms Bougnaoui, a Muslim woman, was employed as a design engineer. When she was recruited she was told that due to the customer-facing nature of her role she would not be able to wear her headscarf at all times. Following a site visit, a customer complained that she had worn her headscarf and requested that she do not do so in future. When her employer raised the issue with her, she refused to comply with the customer’s request and she was dismissed. 

She claimed religious discrimination and the French court asked the European Court of Justice whether, assuming Ms Bougnaoui’s treatment was discriminatory, it could be justified as being based on a genuine occupational requirement. 

Advocate General’s Opinion 

The Advocate General considered that a workplace ban on employees wearing religious signs or apparel when in contact with customers constitutes direct discrimination on grounds of religion or belief and could not be justified as being based on a genuine occupational requirement. 

Direct discrimination 

Ms Bougnaoui’s dismissal was an act of direct discrimination. Although she had not been dismissed because she was a Muslim, she had been dismissed because of her manifestation of that religion. Whilst it was not clear whether her employer had imposed a ban on the Islamic headscarf alone, or on all religious signs, when attending a customer’s premises, it was plain that her dismissal was linked to a prohibition on wearing religious apparel. She had been treated less favourably on the ground of her religion. A design engineer who had not chosen to manifest their religious belief by wearing particular apparel would not have been dismissed. 

Although the Equal Treatment Framework Directive makes no express reference to the question of manifestation, the Advocate General considered that the prohibition on direct discrimination extends to manifestation of religion or belief as that right is an intrinsic part of the right to freedom of religion under Article 9 of the European Convention on Human Rights and Article 10 of the Charter of Fundamental Rights of the European Union. 

Occupational requirement exception

The Advocate General accepted that the ban was based on a characteristic related to religion or belief (wearing a headscarf). However, she did not accept that the characteristic was a “genuine and determining occupational requirement”. That exception must be interpreted strictly. The Recital to the Directive states that it will only be available in very limited circumstances and so it cannot be used to justify a blanket exception for all the activities a given employee may potentially engage in. It might, for example, exclude a Sikh employee who insists on wearing a turban from working in a post which requires the wearing of protective headgear or a Muslim employee working on potentially dangerous factory machinery if her religious attire could give serious concerns on safety grounds. The Advocate General found it difficult to envisage other circumstances in which the exception might apply and there was nothing to suggest that Ms Bougnaoui had been in any way hindered in the performance of her duties by wearing a headscarf. 

Indirect discrimination

The Advocate General went on to express her views on whether if the claim were one of indirect discrimination a ban on wearing religious apparel or symbols could be justified. She considered it unlikely it could be justified. To someone who is an observant member of a faith, religious identity is an integral part of that person’s very being. The requirements of one’s faith cannot be “politely discarded” during working hours. It would be wrong to suppose that, whereas someone’s sex and skin colour accompany them everywhere, their religion does not. 

The starting point therefore is that an employee has the right to wear religious apparel or symbols but that the employer may have the right to impose restrictions. Western society regards visual eye contact as of fundamental importance in face to face communications with customers, and so a ban on full face and eye coverings would be likely to be proportionate in such a setting. But the same would not be said of working in a call centre. She considered it unlikely that the employer’s ban in this case on wearing religious signs generally, or the Islamic headscarf alone, would be seen as proportionate. In addition, where it is simply a question of commercial profit versus freedom to manifest religion, the latter should prevail. An employer should not be excused from compliance with a requirement for equal treatment just because their customers may not like it. 

Implications

The Advocate General’s opinion in this case is in stark contrast to that of the Advocate General in another recent case on this point (Achbita v G4S Secure Solutions NV). The suggestion that dress code requirements can give rise to claims of direct discrimination, as well as indirect discrimination, is of particular concern as direct religious discrimination cannot be justified. Although there is a genuine occupational requirement exception, the Advocate General indicated this must be applied strictly. In any event, in the UK the genuine occupational requirement exception is drafted more narrowly and is only available in cases where the employer imposes a requirement to be of a particular religion, rather than a requirement related more broadly to a religious characteristic, such as not wearing a headscarf. It would not therefore be available in claims of direct discrimination related to dress codes.

It is to be hoped that the European Court of Justice will clarify the position and its decision in the two cases is awaited with interest.