In Case C-157/15 Achbita v G4S Secure Solutions NV, a Belgian reference, and Case C-188/15 Bougnaoui v Micropole SA, a French reference (14 March 2017) , the European Court of Justice (‘ECJ’) has considered headscarf bans in the workplace.
When Ms Achbita commenced her employment as a receptionist, there was an unwritten rule that employees could not wear visible signs of their political, philosophical and religious beliefs at work. Some years later Ms Achbita informed her employer that she wished to wear an Islamic headscarf. Her employer considered that her headscarf would contravene its position of neutrality and would not be tolerated. The G4S works council improved an amendment to the workplace regulations, prohibiting employees from wearing any visible signs of their beliefs. Ms Achbita was dismissed because of her insistence on wearing the head scarf at work.
In the French case, Ms Bougnaoui was informed by a representative of Micropole at a student fair that the wearing of an Islamic headscarf might pose a problem with customers of the company. During an internship with Micropole, Ms Bougnaoui wore a bandana. When her employment commenced, she wore a headscarf. Following a complaint from a customer about Ms Bougnaoui wearing the headscarf, her employer asked her not to wear the veil in future. She objected and was dismissed.
The issue in Achbita was whether G4S’s internal rule regarding the manifestation of religious and other beliefs constituted direct discrimination contrary to Art. 2(2)(a) of the EU Equal Treatment Framework Directive (No. 2000/78) (‘the Directive’). The ECJ observed that the rule applied to employees in a general and undifferentiated way and was therefore not directly discriminatory. The Court went on to consider whether the rule amounted to indirect discrimination under Art. 2(2)(b). The Court held that an employer’s wish to project a neutral image was in principle legitimate but needed to be applied in a consistent and systematic manner and be limited to what was strictly necessary. In this respect, the referring national court could consider whether it would have been possible for the employer, without taking on an additional burden, to employ Ms Achbita in a role not involving any visual contact with customers.
In Bougnaoui the ECJ considered whether the employer could rely on the ‘genuine and determining occupational requirement’ exception under Art. 4(1) of the Directive. The Court held that where the dismissal was not based on internal work place rules (which was not clear from the reference) a customer’s reluctance to be served by an employee with a headscarf was no justification under Art. 4(1). The scope of the exception under Art. 4(1) was limited. It referred to objective requirements, but did not cover subjective considerations, such as an employer’s willingness to take into account the wishes of a customer.
Barbara Zeitler / 22nd Mar 2017
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