The Court of Justice of the European Union (CJEU) has provided guidance to the domestic courts in both Belgium and France regarding the banning of the hijab, the Islamic headscarf, in the workplace.

It has stated that an internal rule which prohibits the visible wearing of any political, philosophical or religious signs does not constitute direct discrimination under certain conditions.

Headscarves can be banned if part of a general policy

Whilst the CJEU stressed that the banning of headscarves in the workplace will not always be considered direct discrimination, it may be considered indirect discrimination.

Two cases involving the ban on headscarves in the workplace in Belgium and France, were brought by their respective national courts to the CJEU. In its first joint ruling regarding women wearing headscarves in the workplace, the CJEU stated that headscarves can be lawfully banned if part of a general policy which prohibits the display of religious and political symbols in the workplace.

It is important to note that in both rulings the CJEU has simply provided guidance to the respective national courts, they have not made a decision. How this guidance is interpreted remains to be seen.

Achbita v G4S Security Solutions

Ms Samira Achbita worked as a receptionist for G4S Security Solutions. After working for the firm for three years, Ms Achbita decided to wear a headscarf to work for religious reasons. The company had an unwritten rule prohibiting its employees from wearing physical signs of political or religious beliefs in the workplace.

Shortly thereafter, the employer created a written 'neutral' dress code policy prohibiting the display of religious and political symbols.

Ms Achbita was dismissed for refusing to take off her headscarf in work. Her employer stated that she had failed to comply with its policy banning the display of religious symbols.

The employer's policy required all employees to comply with its 'neutral' dress code policy and not display anything which would constitute a religious or political symbol.

The Belgian national court ruled that such garments could be banned, but only as part of a general policy banning all religious or political symbols. This matter was referred to the CJEU which considered whether or not Ms Achbita had suffered direct discrimination. The CJEU ruled that as the policy did not introduce a difference of treatment of a particular member of staff based on religion or belief, it did not give rise to direct discrimination.

The CJEU also considered the issue of indirect discrimination and commented that such a policy may cause indirect discrimination if the seemingly neutral obligation it imposes results in people of a particular religion or belief being put at a particular disadvantage. However, the policy would be permissible if 'objectively justified by a legitimate aim', such as a policy of neutrality in the workplace.

The CJEU did, however, state that G4S Security Solutions could have considered accommodating its employee by offering her a role which was not customer-facing.

Bougnaoui v Micropole

Ms Asma Bougnaoui first came into contact with Micropole at a recruitment fair, when she expressed her interest in obtaining an internship with the company. It was here she was advised that if she wore a headscarf when dealing with customers, it may cause an issue and she would therefore not be allowed to wear a headscarf in the workplace.

Micropole advised her that they had a religious neutrality policy and that it “entirely respect[ed] the principle of freedom of opinion and the religious beliefs of everyone.”

While interning for the company, Ms Bougnaoui simply wore a bandana. However, shortly after she was offered full-time employment, she began to wear a headscarf.

Ms Bougnaoui's decision to wear a headscarf in the workplace did not cause an issue until a customer made a formal complaint. Ms Bougnaoui was told that her wearing a headscarf had “embarrassed” the customer's employees when she visited its office. Micropole reiterated its policy of neutrality to the employee and when she refused to comply, she was dismissed. Ms Bougnaoui later challenged her dismissal in the French Courts.

Ms Bougnaoui unsuccessfully claimed religious discrimination before the Labour Court in Paris. On further appeal, the Court of Cassation referred the matter to the CJEU. The CJEU examined whether the willingness of an employer to take into account the wishes of a customer was a 'genuine and determining occupational requirement' under the EU Equal Treatment Framework Directive.

Under this Directive, indirect discrimination may be justified if the employer can demonstrate that they had a legitimate aim such as a 'genuine and determining occupational requirement'.

In an earlier judgment, the European Court of Human Rights (ECHR) ruled that the willingness of an employer to display a neutral image towards its customers was a 'genuine and determining occupational requirement' and therefore this did constitute a legitimate aim.

However, the ECHR specified that this is only in relation to employees who are in direct contact with customers.

The CJEU stressed that if there is no written policy in place banning headscarves, customers cannot demand that an employee remove a headscarf. It stated that employers are not at liberty to “pander” to the prejudices of their clients.

Dress Codes in Ireland

An Garda Síochána came under pressure in 2007 when a member of the Sikh community declined to take up his post in the Garda Reserve, after he was told that he was not allowed to wear his turban whilst on duty.

The Irish Sikh Council criticised the Gardaí, stating that the police forces in other countries, such as the US and the United Kingdom, permitted headscarves and turbans to be worn in their respective police forces.

The Gardaí defended their stance by arguing that they had to maintain an impartial stance regarding religion and to move away from this stance would affect their longstanding tradition and image.

However, many have argued that the Gardaí's uniform does not reflect a neutral religious stance, as the Gardaí badge is a symbol of Celtic Christianity and includes four circles, one on each corner resembling a cross.

In 2012, a former Dunnes Stores sales assistant sued her employer for unfair dismissal, arguing that she was not permitted to wear her veil at work. The Employment Appeals Tribunal heard that Dunnes Stores had a standard uniform and no variation was allowed. The case was shortly thereafter settled and no ruling was issued.

In 2015, the Garda National Immigration Bureau (GNIB) released a statement confirming that Muslim women wearing headscarves are entitled to privacy when applying for visas. This decision came after the GNIB received complaints that some women had felt “humiliated” when asked to remove their headscarf to have their photo taken for their visa application.

Current and Appropriate

As the Irish workforce becomes more diverse, it is important that employers review their company policies periodically to ensure they take into account changing times. The policies in place should be current and appropriate for their workforce.

The CJEU rulings demonstrate just how crucial it is to have a well-documented policy in place and how this should be applied across the workforce. It is important to note that the CJEU stressed that any policy enforced must be reasonable, proportionate and objectively justified.

It is also important to remember that the policy should be drafted in consideration of the business needs of an employer. The CJEU rulings suggest that a prohibition on religious symbols, such as the headscarf, may only apply to employees who are in direct contact with customers and not, for example, the employees in the back of the office.

Furthermore, a simple request from a customer does not allow the employer to prohibit an employee from wearing religious signs. When introducing a policy, it is always important to have employees engage in consultation before the policy is introduced. This ensures a higher level of 'buy-in' and also makes employees aware of the content of the policy and how to comply.

This article first appeared in Industrial Relations News, IRN 13 on the 30th March 2017.