There have been two recent ECJ cases on whether the dismissal of an employee for wearing a hijab amounted to religious discrimination.
- In Achbita and another v G4S Secure Solutions NV, the ECJ held that the prohibition on wearing a hijab as part of a rule prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, was not direct discrimination. The rule covered any manifestation of such beliefs without distinction, requiring all workers to dress neutrally.
The ECJ agreed that the prohibition may constitute indirect discrimination, but that the employer’s policy of neutrality would be a legitimate aim, particularly where it only affected those workers with customer facing roles.
- In Bougnaoui and another v Micropole SA, a customer complained about the wearing of a veil by one of Micropole’s employees and requested that there should be “no veil next time”. The employee was dismissed for refusing to agree to this.
The ECJ found that an employer’s willingness to take into account the wishes of a customer could not be a genuine and determining occupational requirement (as this was a subjective consideration and not based objectively on the nature of the activities). The dismissal of the employee amounted to direct discrimination.
Why this matters? Employers should be cautious before concluding that a dismissal for wearing the hijab (or other religious signs) will not amount to discrimination. In Achbita, it is difficult to see how the policy was not directly discriminatory, being only of relevance to those with political, philosophical or religious beliefs. In any event, employers may have difficulty objectively justifying an indirect discrimination claim in this context, bearing in mind the European Court of Human Rights’ decision in Eweida, which found that the employer’s dress code in that case placed too much weight on the employer’s interest in its corporate image over the employee’s wish to manifest her religious belief by wearing a crucifix.