We report on the recent Advocate General's opinion in Bougnaoui and another v Micropole SA C-188/15 that an employee’s dismissal for wearing an Islamic headscarf at work was direct discrimination on the grounds of religion or belief.

Facts

Ms Bougnaoui is a French Muslim woman who was employed as a design engineer at Micropole SA, a private sector IT consultancy company operating in France. Leading up to her recruitment in July 2008, it was made clear by the employer that she would not be permitted to wear her headscarf at all times, due to the customer-facing nature of her role. A customer made a complaint to the company that Ms Bougnaoui had worn her headscarf on a site visit and requested that she not do so in future. The company raised this issue with Ms Bougnaoui. She refused to comply with the customer’s wishes and so the company dismissed her.

Ms Bougnaoui unsuccessfully claimed religious discrimination before a Parisian labour court. She was unsuccessful on appeal and, on further appeal, the French Court of Cassation referred various questions to the European Court of Justice (ECJ).

The Court of Cassation asked to what extent the prohibition of discrimination based on religion or belief under EU law, particularly the Equal Treatment Framework Directive (the Directive), rendered Ms Bougnaoui’s dismissal unlawful. It also asked whether, on the assumption that Ms Bougnaoui’s treatment was discriminatory, it could be justified as being based on a genuine occupational requirement under Article 4(1) of the Directive.

Advocate General’s opinion 

In her opinion, Advocate General Sharpston confirmed that Ms Bougnaoui’s dismissal amounted to direct discrimination on the ground of religion or belief. The discrimination could not be defended on the ground of “genuine and determining occupational requirement”. The Advocate General stated that she found it difficult to envisage any circumstances, other than those related to health and safety, where a blanket ban on religious apparel could be justified.

Advocate General Sharpston considered the wide differences that exist between the legal systems of the EU member states in relation to the wearing of religious apparel and religious signs at work, particular as regards public sector employees. In France, public sector employees are prohibited from wearing religious signs or apparel in the workplace. She also noted that the freedom to manifest one’s religion or belief falls within the scope of the Directive, as it is an intrinsic part of freedom of religion.

The Advocate General stated that, although it was unclear whether the employer had banned the Islamic headscarf or had imposed a blanket ban on all religious signs when in contact with customers, it was clear that the dismissal was linked to a prohibition on religious apparel. The Advocate General considered that the prohibition in the Directive extends not only to the religion or belief of an employee but also to manifestations of that belief. Therefore although Ms Bougnaoui was not dismissed on the grounds of her religion, rather on her manifestation of her religion, this can still amount to direct discrimination on grounds of religion or belief. It was clear that Ms Bougnaoui was treated less favourably than another would have been in a comparable situation.

The dismissal would therefore only be lawful if one of the derogations laid down in the Directive applied. Advocate General Sharpston considered that they did not. The question asked by the Court of Cassation referred specifically to Article 4(1), which provides a defence to treatment that would otherwise amount to discrimination where the difference of treatment is based on a characteristic related to any grounds for discrimination, and that characteristic constitutes a “genuine and determining occupational requirement”. The Advocate General noted that this derogation will only apply in very limited circumstances, for example the Court has accepted a requirement based on age as to the possession of high physical characteristics when applied to persons such as fire service employees. In relation to religion or belief, Advocate General Sharpston stated that she found it difficult to envisage any circumstances, other than health and safety reasons, where the prohibition of discrimination based on religion or belief could fall within Article 4(1). There was nothing to suggest that Ms Bougnaoui had been in any way hindered in her performance of her duties of a design engineer by wearing a headscarf.

The Advocate General also set out her views on the possibility that the ECJ may treat this as a case of indirect discrimination. She considered that an employer could potentially justify a rule banning any item of apparel, religious or secular, which reflected the wearer's individuality in any way, on the grounds that it may be a legitimate aim for an employer to want to project a particular image to clients or customers. However, the means of achieving such legitimate aims must be proportionate. Advocate General Sharpston emphasised that to someone who is an observant member of a faith, religious identity is an integral part of that person’s being. She considered that the starting point for any analysis of proportionality should be that the employee has a right to wear religious apparel but that the employer may have the right to impose restrictions. For example, in a relationship involving face to face communication with customers, a prohibition on full face coverings would be proportionate. However, where the employee seeks to wear a headscarf that leaves the face and eyes entirely clear, there is no justification for prohibiting the wearing of that headgear.

Advocate General Sharpston considered it unlikely that in this case, the ban on wearing religious signs or the headscarf alone would be seen as proportionate. She expressed a view that where it is simply a question of commercial profit versus freedom to manifest a religion, the latter should prevail.

Comment

Advocate General Sharpston’s opinion is in sharp contrast to the earlier opinion given by Advocate General Kokott in Achbita and another v G4S Secure Solutions NV C-157/15, which involved similar facts (see our briefing of 10 June 2016). In that case, Advocate General Kokott gave an opinion that a Belgian company’s dress code banning any visible religious, political or philosophical symbols in the workplace did not amount to direct discrimination, because it affected all employees equally. In addition, even if it did amount to direct discrimination, the Advocate General believed that it could be regarded as a genuine determining occupational requirement, bearing in mind the employer’s objective of neutrality.

In Bougnaoui, Advocate General Sharpston has interpreted the concept of direct discrimination as encompassing less favourable treatment on the grounds of a person’s manifestation of their religion, not just their religion. This means that the defence of objective justification is not available and the discrimination will only be justified if it meets one of the limited derogations, including the genuine determining occupational requirement defence. This leaves employers with little or no defence to a claim. The decisions of the ECJ in both cases – which are expected later this year – are therefore eagerly awaited.