The European Court of Justice (ECJ) has handed down judgments in two cases concerning headscarves in the workplace
The European Court of Justice (ECJ) has handed down judgments in two cases concerning headscarves in the workplace. These decisions follow the Attorney General's opinions, which we have previously reported. In Achbita v G4S Secure Solutions and Bougnaoui v Micropole SA the ECJ considered whether an imposed ban on wearing an Islamic headscarf at work was discriminatory.
Achbita v G4S Secure Solutions (Belgium)
Ms Achbita, a Muslim, worked as a receptionist for G4S. At the time of her recruitment, there was an unwritten rule within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. This was later included in writing within the employee code of conduct. Ms Achbita decided to wear her headscarf at work and refused to comply with the rule. She was dismissed by G4S as a consequence.
Bougnaoui v Micropole SA (France)
Ms Bougnaoui, a Muslim, was employed by Micropole SA. At the time of her recruitment, she was informed that she would not be permitted to wear her headscarf at all times due to the customer facing nature of her role. Despite this, Ms Bougnaoui wore her headscarf to a customer site visit and the customer subsequently made a complaint and requested that Ms Bougnaoui should not wear the headscarf to site visits in future. Her employer raised this with her, but she refused to comply with the customer’s wishes and was dismissed.
In Achbita, the ECJ concluded that the internal rule treated all employees of the company equally, in particular by requiring them to dress neutrally, and it could not find any evidence that the internal rule was applied differently to Ms Achbita when compared to other employees. Therefore, the ECJ found that G4S's actions did not constitute direct discrimination. However, the ECJ indicated that the dress code rule was capable of amounting to indirect discrimination.
In Bougnaoui, the ECJ concluded that Micropole's actions were directly discriminatory. The ECJ distinguished the case on the basis that Micropole acted in response to a customer's objections. Micropole could not therefore rely on 'a genuine and determining occupational requirement' to justify the dress code.
The cases were distinguished on the basis that one employer was enforcing a neutral policy and the other was reacting to a customer complaint.
It is worth noting that the Bougnaoui decision largely concerned whether a 'genuine occupational requirement' exception applied. In the UK, the genuine occupational requirement exception under the Equality Act 2010 is very narrow and would not have assisted a UK employer in similar circumstances.
However, the judgements are a useful reminder of the risks associated with having and enforcing a strict dress code. Employers should always ensure dress codes are drafted neutrally and must be conscious of the risk of indirect discrimination. Indirect discrimination can be justified, but only where it is a proportionate means of achieving a legitimate aim. Employers will therefore need to consider whether exceptions to dress codes are appropriate on a case by case basis.