The Advocate General (AG) has given her Opinion in the second case before the European Court of Justice (ECJ) on whether a ban on wearing an Islamic headscarf (hijab) in the workplace is discriminatory and can be justified. Her view is that dismissing an employee because a customer’s employees found her hijab “embarrassing” was directly and indirectly discriminatory and could not be justified.
In Bougnaoui and anor v Micropole SA Ms Bougnaoui, who worked as a design engineer for Micropole, was asked to remove her headscarf following a site visit to a customer who had subsequently complained. When she refused she was dismissed and she brought a claim of religious discrimination. The French Courts did not uphold her claim but, on appeal, referred the question of whether the treatment could be justified as being a genuine and determining occupational requirement to the ECJ.
The AG’s Opinion is that the dismissal was an act of direct discrimination, not because of her religion, but because of her manifestation of that religion. She had clearly been treated less favourably than a comparator who had chosen not to manifest their belief by wearing particular religious apparel. In looking at whether this could be justified as being a genuine occupational requirement, the AG took the view that this exception must be interpreted strictly and must relate to the employee’s ability to do their job, and not to the general requirements of the business. In particular, she stated, “It is not about losing one’s job in order to help the employer’s profit line”. The employer could not rely on its business interests in its relations with its customers to justify the ban as being a requirement for the job.
The AG also looked at indirect discrimination and whether this could be objectively justified. She balanced the business need for freedom to pursue commercial interests with the individual right to wear religious apparel or symbols. In looking at proportionality, she took into account the fact that the hijab had no impact on Ms Bougnaoui’s face-to-face communications with customers as her face and eyes were left entirely clear, which meant there was no apparent justification for the ban.
The AG also described the argument that an employer needed to take a discriminatory action to avoid upsetting customers as “insidious” and took the view that where a customer’s attitude indicates prejudice it would be particularly dangerous to excuse the employer from complying with anti-discrimination obligations in order to pander to that prejudice.
The conflict arising from two protected rights – the individual right to hold and manifest one’s religion and the employer’s right to conduct its business in a way it choses - continues to cause controversy. However, as the AG commented, in the vast majority of cases a sensible discussion between the employer and employee should take place to reach some sort of accommodation without the need to resort to litigation.
The ECJ, which will ultimately decide the case, is not bound to follow the AG’s opinion, but it usually does. If it does, it will mean that there will be a high threshold for employers to show there is a genuine requirement for the job that precludes religious apparel to justify any potential discrimination. The cases where this has succeeded to date have largely relied on health and safety rather than business driven reasons.
This Opinion also contradicts the recent Opinion of another AG in a Belgian case with very similar facts involving a ban on wearing a hijab where the employer’s dress code of political and religious neutrality was recently considered to be objectively justified. The ECJ is due to make a decision on both these cases towards the end of the year.
It is currently unclear what the status EU decisions made before Brexit will ultimately have, but in the meantime, the UK’s courts and tribunals are required to apply them. Whatever happens following Brexit it cannot be morally right that a customer can overtly discriminate. The answer for business probably lies in ensuring robust terms in service contracts rather than reversing the UK’s discrimination protections.