The ECJ has handed down decisions in two cases relating to Muslim women who wished to wear a headscarf at work. The decisions were heard separately but were delivered on the same day. While many outlets reported that the ECJ had ‘banned headscarves’, this is not the case and employers are reminded that such actions are likely to amount to unlawful discrimination in the UK.
The first case, Achbita -v- G4S, confirmed a woman who was employed to work as a secretary. She was dismissed when she began wearing her headscarf at work. This was because G4S had a policy of political, philosophical and religious neutrality which applied equally to all staff. The ECJ held that her dismissal did not amount to direct discrimination because all religions were treated equally – the policy applied to everyone. It went on to say that such a policy might amount to indirect discrimination, insofar as it had a disproportionate effect on people of one religion (such as Muslims, who wanted to wear a headscarf).
Unlike direct discrimination, indirect discrimination can be justified if the employer can show that it was seeking to achieve a legitimate aim and its means of doing so were necessary and proportionate. The ECJ held that while this would ultimately be for the national court to determine, a policy such as the one operated by G4S “must be considered legitimate”. The prohibition on wearing visible sign of political philosophical or religious beliefs was appropriate to ensure that the policy was properly applied, provided this was done in a ‘consistent and systematic’ manner. As to necessity, the national court should consider whether the prohibition covered only members of staff who interact with customers, and whether Ms Achbita could have been offered an alternative post not involving contact with customers, such that she could wear her headscarf.
In its decision, the ECJ placed weight on the importance of the principle of neutrality. This was a Belgian case and in that context principles of secularism and neutrality have a particular importance which they do not have in the UK. Rather, in the UK, the emphasis has always been on diversity and tolerance, rather than pronounced secularism. For this reason, it is doubtful that the same result would have been reached in the context of a UK based company.
The second case, Bougnaoui -v- Micropole, arose on slightly different facts and concerned a more specific question. Ms Bougnaoui worked as an engineer and made site visits; following one such visit the customer made a complaint to Micropole about Ms Bougnaoui, stating that her decision to wear a headscarf had made some of its staff uncomfortable. The client specifically requested “no veil next time”. Ms Bougnaoui refused to comply with the instruction and was subsequently dismissed.
The question from the referring court was whether a complaint from a customer could be a ‘genuine and determining occupational requirement’. Such requirements can be used to justify direct discrimination in limited circumstances – for example, a women’s only gym employing a female changing room attendant. Looking at the occupational requirement question, the ECJ held that a customer complaint did not qualify. The genuine and determining occupational requirement justification will only be applicable in very limited circumstances, where it is dictated by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out. It should be something which is objectively required. Here, the employer’s willingness (or not) to take into account the customer’s wishes was a subjective issue, and not something that was dictated by the nature of the work.
It was unclear whether the referring court had decided that the treatment was discriminatory or not; this question was referred back down in light of the guidance given in Achbita. Thus, no conclusion was reached on whether or not Micropole’s actions had resulted in discrimination. This case could not arise on the same facts in the UK as the occupational requirement justification is only available where the requirement is to either have, or not have, a protected characteristic (i.e. to be a Muslim). Under the Directive the ‘genuine and determining occupational requirement’ language is slightly broader in that it can be something ‘related to’ a protected characteristic, (i.e. wearing a headscarf as a result of being a Muslim). This means that the decision is of limited practical value in the UK.
It is clear that neither of these cases give employers a carte blanche to ban headscarves in the workplace; such an action is still likely to amount to unlawful discrimination (potentially direct or indirect, depending on the circumstances of the ‘ban’, ‘policy’, etc.).