The “headscarf” case has been reported as a European Court decision allowing employers to dismiss employees who wear religious dress.
The headlines have over-simplified the decision. Below, we set out some of the complexities with the latest decisions on religious belief discrimination and why we do not think that this decision is a blanket permission for employers to ban religious dress in the workplace.
The definition and the expression of one’s cultural identity remains a topical issue, not without its controversies. It is not, therefore, surprising to see this debate continued within the workplace, particularly relating to the expression of religious belief by employees and how that is reconciled with an employer’s image. In the two linked cases of Achbita v G4S and Bouagnaoui v Micropole SA, the Court of Justice of the European Union (CJEU) had to deal with questions relating to the wearing of headscarves in the workplace.
In Achbita, a case referred from Belgium, the Claimant was employed as a receptionist for G4S. She was informed that the wearing of an Islamic headcovering (also known as a hijab) would not be tolerated at work as it was contrary to G4S’s policy of religious “neutrality”. Ms Achbita was dismissed when she refused to stop wearing her hijab. The question asked by the Belgian Court of the CJEU was whether the prohibition on the wearing of a hijab at work, in accordance with a religious neutrality policy, could be direct discrimination if it is applied to all manifestations of religious beliefs. The CJEU held that such a prohibition is not direct discrimination.
A company policy that prohibits the wearing of any religious dress in order to promote religious neutrality appears to favour those who (a) lack any belief and; or (b) do not wish to manifest their religious belief by way of religious clothing or otherwise. In our view, in most cases, a policy such as this is likely to be discriminatory.
The concerns raised by this decision could in some cases permit a Muslim woman to be prevented from wearing a hijab, whereas a person wearing a bandanna for fashion would be allowed to do so. In our view, there remains a strong argument that such a policy is in fact direct (or at least indirect) discrimination as the policy itself is not neutral - while the policy is applied to all religions, it is targeted specifically at particular groups who wish to manifest a religious belief.
The CJEU did not agree with these concerns. It then went further and considered whether the neutrality policy amounted to “indirect discrimination” despite the fact that this particular point was not referred to the CJEU. While the CJEU accepted that such a policy could be indirectly discriminatory, it held that such discrimination may be capable of justification on the basis that:
(a) a company policy requiring religious neutrality is legitimate; and (b) it is appropriate to prohibit the wearing of religious signs to uphold that policy.
In our view, we would be very surprised if the Tribunals and Courts in England and Wales would follow a similar line of reasoning, given the value placed on plurality which is not consistent with the concept of religious neutrality. Further, the justification offered by the CJEU in itself is tainted with discrimination (in saying that religious neutrality is a legitimate aim) and cannot therefore be legitimate, in our view.
In Bougnaoui, which is a French case, the Claimant was dismissed when she refused a request to stop wearing a hijab following concerns raised by the employer’s customers. She brought complaints of discrimination. The French Court of Cassation referred a question to the CJEU as to whether the wish of a customer for the removal of the hijab could be a genuine occupational requirement (which would act as a defence to any direct discrimination allegation).
More positively (and in keeping with the well reasoned Opinion of the British Advocate General), the CJEU held in this case that this could not be an occupational requirement. It is now for the French Court to determine whether there has been a discriminatory dismissal.
The CJEU’s approach in the case of Ms Achbita is difficult to reconcile with the rights to freedom of religion and manifestation of religion.
The CJEU considers that “the concept of religion must be interpreted as covering both the fact of having religious belief and the freedom of persons to manifest that belief in public.” Whereas the CJEU starts by reaffirming the protection afforded by the European Directive to employees wishing to display their religious belief, it instantly disregards its value in favour of the employer’s freedom to conduct a business. The balancing exercise is pushed in the favour of the employer.
These decisions will undoubtedly cause some employers to consider whether they are now able to restrict expression of religious beliefs in the workplace. However, the decision has to be taken in the relevant context and not applied in any blanket sense.
The decision from the CJEU is regrettable as it is the first decision on religious belief and it has not provided clarity on a difficult issue. It is disappointing that the European Court of Human Rights’ decision in Eweida v BA (the woman who was prevented from wearing a Christian crucifix on her lapel for corporate image reasons) has not even been mentioned by the CJEU.
What may be a justifiable practice in one place, does not necessarily make it justifiable elsewhere. It remains our strong view that it is only in exceptional cases (such as on the grounds of health and safety) that the prohibition of religious dress can be justified in a British workplace. In our view, employers who do not make reasonable accommodations to allow individuals to manifest their religious beliefs in the workplace will still face valid allegations of discrimination and, in some cases, breaches of human rights legislation. Corporate image cannot be allowed to prevent such freedoms.