Two cases are due to be heard in the European Court of Justice (ECJ) later this month, which both concern the wearing of an Islamic headscarf. They are Bougnaoui and another v Micropole Univers (C-188/15) and Achbita and another v G4S Secure Solutions NV (C-157/15).
In Bougnaoui, a reference has been made to the ECJ from a French court about third party objections to religious dress. The case concerns an employee who was an IT engineer and whose role involved visiting clients' premises. She wore an Islamic headscarf, a hijab, but was told by her employer to remove it while visiting a client, after the client's staff complained about her appearance. The Muslim employee was dismissed after she refused.
Bougnaoui revolves around whether or not the need to adopt a "neutral appearance" with a client can be an “occupational requirement” of a job.
In the UK, under the Equality Act 2010 an employer may discriminate lawfully in limited circumstances where, having regard to the nature or context of the work, being of a particular sex, race, disability, religion or belief, sexual orientation or age (or not being a transsexual person, married or a civil partner) is an occupational requirement (OR).
Common examples might include where the need for authenticity or realism might require someone of a particular race, sex or age for acting roles or considerations of privacy or decency might require a public changing room or lavatory attendant to be of the same sex as those using the facilities.
To rely on the general OR exception, a respondent must show that, having regard to the nature or context of the work:
- Being of a "particular" sex, race, disability, religion or belief, sexual orientation or age (or not being a transsexual person, married or a civil partner) is an OR.
- The application of the requirement is a proportionate means of achieving a legitimate aim.
- The claimant does not meet the requirement (or, other than in sex cases, the employer has reasonable grounds for not being satisfied that the claimant meets it).
It will be interesting to see how an ECJ decision on this point either way will sit against the UK legislative framework.
A similar question has been referred to the ECJ from a court in Belgium in Achbita. The issue in that case is whether or not a prohibition on Muslim women wearing a hijab in the workplace constitutes direct discrimination where the employer's rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs.
A Muslim receptionist who was permanently contracted out to work for a third party informed her employer that she was going to begin wearing a hijab at work. Her employer told her that the wearing of any visible religious symbols was contrary to its rules on neutrality, which applied during contact with clients. The employer subsequently amended its written rules on workplace dress and appearance. It introduced a uniform and banned workers from wearing any visible symbols expressing their political, philosophical or religious beliefs.
The receptionist’s refusal to go to work without a headscarf ultimately resulted in her dismissal. She brought a domestic discrimination claim and Belgium’s labour appeal court referred her case to the ECJ.
The Belgian court has sought guidance from the ECJ on whether or not a rule forbidding all staff from wearing any visible political or religious symbols could lead to direct discrimination against Muslims who wish to wear a headscarf at work.
Bougnaoui and Achbita are both listed to be heard in the ECJ on 15 March 2016.
There are additional political tensions in France and Belgium around this topic, and in France in particular, because of a constitutional requirement of "laïcité", which translates as secularity or the separation of state and religious activities. The idea that ethnic and religious groups might enjoy rights and recognition due to their minority status is not recognised - French citizens are meant to be identical in their “Frenchness”. There is also a French law on secularity and conspicuous religious symbols in schools, which bans the wearing of conspicuous religious symbols in French state schools. The law does not mention any particular symbol, and thus bans all Christian, Muslim, Sikh, Jewish and other religions' symbols. It is however considered by many specifically to target the wearing of headscarves by Muslim schoolgirls. For this reason, it is occasionally referred to as the "French headscarf ban" in the foreign press. Similarly, the Belgian Government was considering a ban on the wearing of any conspicuous religious symbols for civil servants.
Whatever the outcome, the ECJ's decision is likely to be of significant interest.