Headscarves in the workplace: a difference of opinions

Headscarves in the workplace: a difference of opinions

Advocate Generals of the Court of Justice of the European Union have issued conflicting opinions regarding employers banning employees wearing Islamic headscarves.

Delivered only weeks apart, and perhaps eclipsed by Brexit, the two conflicting opinions on landmark cases could cause major headaches for employers in the UK until there is a decision from the Court of Justice of the European Union (CJEU).

Employers continue to be bound by EU law!
It is very important that employers remember that the UK has not yet left the EU. Whilst we may indeed see reform in some areas of employment law in a post-Brexit context, (two, perhaps three years away) it is vital that businesses focus on the “here and now” in relation to EU case law lest they find themselves before an Employment Tribunal.

What is an Advocate General?
• There are 11 Advocates General (AGs) for the CJEU, assisting the judges and presenting opinions as a precursor to judgments.
• Their opinions are not binding on the CJEU.
• AG opinions are individual, independent and usually followed by the judges.

What is the EU and UK law here?
Article 4(1) of the Equal Treatment Directive 2006, a piece of EU legislation, states that a difference in treatment based on a characteristic related to any of the protected grounds will not be direct discrimination where such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

This was transposed into UK law and is contained in paragraph 1, Schedule 9 of what is now the Equality Act 2010. To briefly touch upon Brexit, this piece of UK legislation will not automatically fall away once the UK leaves the EU. Any government must decide whether to retain, repeal or amend it.

 Facts and AG opinions of the conflicting cases
1. Achbita v G4S Secure Solutions NV (Belgium)
Opinion delivered – 31 May 2016
A female Muslim was dismissed from her position as a receptionist for continuing to wear her headscarf in the workplace despite her employer’s policy of neutrality.
The AG, Kokott, stated that this dress code was not discriminatory because it prohibited visibly wearing all religious, philosophical or political beliefs. It did not distinguish between different beliefs.
Therefore, the employer’s policy (although unwritten) did not amount to direct discrimination. It may have amounted to indirect discrimination but could have been justified.

2. Bougnaoui v Micropole Univers [2016] (France)
Opinion delivered -13 July 2016
A female IT engineer was told to remove her headscarf after a staff member of a client she had visited complained, requesting “no veil next time”.
When she took the job she was told that, due to her customer-facing role, she may not always be able to wear her headscarf.
She refused to stop wearing her headscarf and was dismissed, subsequently claiming religious discrimination in the French Courts.
The Cour de Cassation referred the matter the CJEU, asking whether the wish of a customer that the engineer not wear a headscarf, on the assumption that this was discrimination, could be justified as a genuine and determining occupational requirement.
The AG, Sharpston, stated that direct discrimination cannot be justified on the grounds of financial loss – Micropole suggesting that its commercial interests and relationships with its customers was the basis for which discrimination could be justified.
The AG said that there was nothing to suggest that the wearing of a headscarf would hinder the employee’s performance as an IT engineer, contrasting it with working with potentially dangerous factory machinery.
The AG stated, “If nothing else, to interpret Article 4(1) in the manner proposed by Micropole would risk ‘normalising’ the derogation which that provision lays down. That cannot be right.”

Does any of this sound familiar?
Some readers may remember the case of Eweida and Others v. The United Kingdomwhich went to the European Court of Human Rights in Strasbourg, concerning an employee’s right to wear a cross. This was not a matter of EU law, because it concerned the Council of Europe, a separate institution. However, it is arguably the most important piece of case law for the UK regarding the freedom of religion and religious discrimination at work and was referred to in the AG’s opinion in Micropole. Nadia Eweida’s employers, British Airways plc, were found to have breached her Article 9 rights by prohibiting her from openly wearing a cross. The present CJEU cases will give further guidance and, potentially, obligations for employers.

Which opinion will prevail?
This is simply an unknown at present. The views on proportionality by the AGs differ and it is on this that the real point for employers will hinge. It is important that employers engage in proportionality by balancing their commercial interest with the harm to the employee. Does the restriction go further than is reasonably necessary to achieve the aim? The decisions of the CJEU are eagerly awaited by both employers and their solicitors.

In the interim, employers should be cautious of imposing any dress code which restricts employees’ rights to wear anything associated with belief. For the UK, the decisions could have widespread ramifications. The UK defence regarding “genuine occupational requirement” is very narrowly interpreted – if a ban on religious dress or symbols is considered direct discrimination, there will be little defence for employers.

If you have any questions relating to:
• Dress codes in the workplace;
• Discrimination; or
• Any other aspect of employment law

Contact us at employment@macandmac.co.uk  or call on 01463 239393.

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