According to an Advocate General’s opinion to the European Court of Justice (dated 13 July 2016, C-188/15 Bougnaoui and ADDH v. Microple SA) a company policy requiring an employee to remove her Islamic headscarf when in contact with clients constitutes unlawful direct discrimination.
Ms Bougnaoui is a Muslim woman who was employed as a design engineer by Micropole SA, an IT consultancy company. Whilst in employment she wore, at times of her choice, an Islamic headscarf which covered her head but left her face exposed. As part of her duties, Ms Bougnaoui was required to meet Micropole’s clients on their premises. Following a complaint from one of those clients that Ms Bougnaoui’s headscarf had “embarrassed” its employees and requesting that “there should be no veil next time”, she was asked to confirm that she would comply with that request on her next visit. She refused to do so and was dismissed. The Advocate General held that Ms Bougnaoui was treated less favourably on the ground of her religion since a design engineer who had not chosen to manifest his or her religious belief would not have been dismissed. The Advocate General therefore concluded that Ms Bougnaoui’s dismissal amounted to direct discrimination on the ground of religion or belief. The dismissal will be lawful only if one of the derogations provided for in the Directive applies. The Directive provides that, in some circumstances, a difference in treatment that would otherwise amount to discrimination may be removed from its scope if the difference is based on a characteristic which constitutes an “occupational requirement”. The Advocate General considers that this derogation must be interpreted strictly. The requirement must be a “genuine and determining” one, which is proportionate to the legitimate objective pursued. In the Advocate General’s view, the derogation could not apply in the present case. In particular, there was no suggestion that Ms Bougnaoui was unable to perform her duties as a design engineer because she wore an Islamic headscarf.
The European Court of Justice will give its judgement at a later date. The Advocate General’s Opinion is not binding on the European Court of Justice. It remains to be seen whether the European Court of Justice will follow the Advocate General’s opinion. We will keep you updated about any future developments.