Hijab ban = direct discrimination

Published

29th July 2016

Readers will remember our recent Insight, Freedom of religion v Freedom to conduct a business, where we outlined the opinion of Advocate General (“AG”) Kokott who said that a decision taken by Belgian security company G4S to ban the wearing of headscarves in the workplace could not amount to direct discrimination. We now have the opinion of AG Sharpston in the French case of Bougnaoui v Micropole SA, a case which has similar facts to the G4S case.

 

In direct contrast to AG Kokott, AG Sharpston has opined that it is unlawful to ban a Muslim employee from wearing her Islamic headscarf (hijab) when in contact with clients.

Micropole SA employed Ms Bougnaoui (Ms B), a practising Muslim who wore a hijab, as a design engineer. Ms B wore her hijab (which covered her head but left her face exposed) at work and when visiting clients. A client complained that her wearing a hijab had embarrassed a number of its employees and requested that there should be “no veil next time”. Micropole SA asked Ms B not to wear her hijab when visiting clients, but she refused to comply. She was subsequently dismissed and raised a claim for religious discrimination in the French Labour Tribunal.  She was unsuccessful and appealed the decision, which was also dismissed.

On further appeal, the Court of Cassation referred the matter to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether Micropole’s policy requiring an employee to remove her hijab when in contact with clients was a “genuine and determining occupational requirement” under Article 4(1) of the Equal Treatment Directive. Article 4(1) provides that a difference of treatment based on a protected characteristic may be lawful where, by reason of the nature of the particular occupational activities concerned or the context in which they are carried out, the characteristic constitutes a ‘genuine and determining occupational requirement’.

AG Sharpston firstly confirmed that Ms Bougnaoui’s dismissal was an act of direct discrimination as it was evident her dismissal was linked to a prohibition on the wearing of religious apparel. Whilst she may not have been dismissed because she was Muslim, the prohibition on direct discrimination in the Directive extends to manifestations of religion or belief (the fact that Ms Bougnaoui wore a hijab). It was clear that she had been treated less favourably on the ground of her religion than a comparator would have been treated in a comparable situation. In respect of whether the ‘genuine occupational requirement’ defence was available, AG Sharpston said that discrimination would only be lawful if based on an ‘occupational requirement’, which must be ‘genuine’ and limited to matters which are absolutely necessary in order to undertake the professional activity in question. She said that, in her view, the derogation must be interpreted strictly. For example, she indicated that might include, for example, excluding a Sikh employee who insisted on wearing a turban from working in a post which required the wearing of protective headgear or a female Muslim employee working on potentially dangerous factory machinery if her religious attire could give rise to serious concerns on safety grounds. But, it could not be used to justify a blanket exception for all the activities that a given employee may potentially engage in. On the facts of the case, AG Sharpston thought Micropole SA appeared to be relying on its commercial interests. However, direct discrimination cannot be justified on the ground of financial loss.

As we outlined in our previous Insight, AG Sharpston’s opinion is advisory only and does not bind the CJEU, which could reach a different conclusion. However, the opinion is likely to be influential going forward.

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Author

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Rupa Mooker

Rupa joined MacRoberts in 2001 as a trainee and has specialised in employment law since qualifying as a solicitor in 2003.

Rupa advises clients in the public and private sector in a straightforward and commercial manner on all employment matters including disciplinary proceedings, dismissals, grievances, absence management, redundancy, discrimination, TUPE and executive exits. Rupa works closely with clients to find pragmatic solutions.

Rupa regularly appears on behalf of clients in Employment Tribunals. She enjoys delivering strategic and interactive training seminars and workshops on topical issues.

Clients have described Rupa as a “highly reputable, focused and pragmatic legal advisor who approaches her relationship with the business as one of being a partner and not just fee taker” and as having “excellent listening and customer service skills”.

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