Two recent opinions from Europe demonstrate the difficulties of applying discrimination law to the delicate issue of religious symbols and manifestations of faith.

In Achbita v G4S Secure Solutions NV [2016] Advocate General Kokott opined that banning the wearing of an Islamic headscarf at work could be justified when an employer has a policy of neutrality and when the ban is applied equally to all visible signs of religious beliefs ie not just where they relate to one religion.

Since then, in Bougnaoui v Micropole SA [2016], a different Advocate General (Sharpston) has given an opinion which is at odds with AG Kokott.

She has opined that it is unlawful to ban a Muslim employee from wearing her headscarf when in contact with clients.

Facts

Ms Bougnaoui, a Muslim, was employed as a design engineer by Micropole SA, in France.

She wore an Islamic headscarf whilst at work including when she was visiting clients at their premises. The headscarf covered her head but not her face.

When Ms Bougnaoui had been recruited, the operational manager and the recruitment manager had addressed the subject of wearing a headscarf 'very clearly'. Micropole had told Ms Bougnaoui that the company had a religious neutrality principle and that it 'entirely respect[ed] the principle of freedom of opinion and the religious beliefs of everyone, but that, since [she] would be in contact internally or externally with the company's clients, [she] would not be able to wear the [headscarf] in all circumstances'.

Ms Bougnaoui apparently took no issue with the policy at that time but did wear her headscarf when visiting clients.

Subsequently, a client complained about Ms Bougnaoui's headscarf saying it 'embarrassed a number of its employees' and asked Micropole that she not wear it on future visits. Micropole in turn asked/instructed Ms Bougnaoui to remove her headscarf when visiting clients. She refused to do so and was dismissed.

Ms Bougnaoui brought a claim for discrimination based on her religious beliefs but the French Labour Tribunal dismissed her claim and held that the dismissal was well founded on the basis of a 'genuine and serious reason'. She appealed but was unsuccessful.

The matter was referred 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 headscarf when in contact with clients was a 'genuine and determining occupational requirement' under Article 4(1) of the Equal Treatment Directive.

AG's opinion

AG Sharpston decided that Ms Bougnaoui's dismissal did constitute unlawful direct discrimination on the grounds of religion or belief.

Unlike the AG in Achbita, the AG in this case considered that the prohibition on direct discrimination applies not just to religious belief itself but also to manifestations of religion, such as the wearing of a headscarf. Consequently, Ms Bougnaoui had been treated less favourably on the ground of her religion than a comparator would have been treated in a similar situation.

The AG added that less favourable treatment 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.

The example given of this was that it would be proportionate to exclude a Sikh who wore a turban from working in a post that required the wearing of protective headgear, for health and safety reasons.

The AG also remarked that, '[t]he business interest in generating maximum profit should in my view give way to the right of the individual employee to manifest his religious convictions'.

Comment

These are just opinions from the Advocate General and are not binding on the CJEU although, in reality, such opinions are usually followed. However, with two conflicting views we will have to wait and see which way the Court goes.

In the current political climate in Europe this is clearly a sensitive area and legal certainty would be helpful.

In the UK we are familiar with the employment tribunal taking a very restrictive view of what amounts to a 'genuine occupational requirement' for the purposes of derogating from equality laws. It would be surprising to many in the UK if the CJEU accepted an employer's general requirement for 'neutrality' as satisfying that strict test.