In June a Belgian company's dress code which banned the wearing of religious headscarves was considered to be neither directly nor indirectly discriminatory on grounds of religion by an Advocate General to the European Court of Justice (the “Achbita” case).
In a very similar case in France, a female engineer (Bougnaoui) was dismissed after refusing to remove her headscarf following a complaint made by a customer.
In stark contrast to Achbita however, the opinion of the Advocate General in Bougnaoui was that there was direct discrimination because, although the employee had not been dismissed because she was a Muslim, she had been dismissed for manifesting her religion (by refusing to remove her headscarf). The Advocate General held that this would be direct discrimination unless the prohibition also extended to other non-religious manifestations of individuality at work, such as the wearing of a football club shirt or an college tie.
This is very much at odds with the usual UK analysis of discrimination: which would regard a ban on religious headgear such as headscarves as indirect, but not direct, discrimination.
The opinion also found that:
- the characteristic relating to religion (i.e. the wearing of a head scarf) was not a genuine and determining requirement of the job which could justify direct discrimination. This defence should, in the opinion of the Advocate General, be limited to exceptional circumstances such as if a head scarf got in the way of a health and safety consideration. It should not justify direct discrimination to protect an employer’s business (e.g. its relationships with its clients or financial considerations); and
- any indirect discrimination could not be justified as it is unlikely that the ban would be proportionate. Religious faith cannot be "politely discarded" at the threshold of the workplace, just as other protected characteristics such as race or sexual orientation cannot be chosen or abandoned at will.
The opinion directly challenges the concept of ‘laïcité’ (the separation of state and religious activities) that is enshrined in French law, possibly making the decision even more sensitive and politically charged than in Achbita given that ‘laïcité’ is a powerful concept in France’s national identity. The Advocate General suggested that it was “insidious” that discrimination in the pursuit of a commercial interest (such as the opinion of a client) could be justified.
What does this mean for employers?
For the time being, nothing has changed as this decision is an Advocate General’s opinion and not a binding ruling. The conclusions in the cases of Bougnaoui and Achbita will be hard to reconcile. If the ECJ follows the Advocate General in Bougnaoui, this could result in a significant widening of the EU concept of direct discrimination, since it focuses not only on the fact of someone’s religion, but also its manifestation – which could cover a huge range of behaviours, from apparel to dietary practices, creating myriad new traps for the unwary employer. The final outcome of these cases is eagerly awaited, at least until there is clarity as to the effect of Brexit on the UK’s obligations to comply with ECJ rulings.