Dress Codes and Religious Discrimination: Contrasting Opinions by Advocate Generals in Achbita -v- G4S30/06/2016 and Bougnaoui-v-Micropole Univers 13/07/2016
In the case of Achbita –v- G4S Case C-157/15 Advocate General Kokott gave an Opinion that dismissal of an employee for wearing a headscarf in contravention of company policy was not directly discriminatory and, if indirectly discriminatory, could be justified by the employer’s policy of neutrality. In contrast, the Opinion of Advocate General Sharpston in the case of Bougnaoui-v-Micropole Univers, delivered less than a month later, concluded that the dismissal of an employee for wearing a headscarf at work was directly discriminatory and could not be defended on the basis of company policy or the employee’s customer facing role.
The Opinion of an Advocate General (“AG”) is not binding. However, the opposing Opinions raise questions as to how the ECJ will determine the issues when their judgments are handed down later in the year. The decisions will have to address the scope of protection (this being the first time religious discrimination cases have come before the ECJ) and could thereby develop the established UK law relating to discrimination based on the wearing of religious symbols at work.
Samira Achbita -v- G4S Secure Solutions NV, Case C-157/15
In the case of Samira Achbita v G4S Secure Solutions NV, AG Kokott delivered an Opinion that prohibiting a female employee of Muslim faith from wearing an Islamic headscarf at work did not constitute direct discrimination based on religion under Article 2(2)(a) of Directive 2000/78 EC (EU Equal Treatment Framework Directive), if the ban is based on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace. Such a ban could, however, constitute indirect discrimination based on religion under Article 2(2)(b) of the Directive.
AG Kokott further held that indirect discrimination of this nature could be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer, as long as this is proportionate and takes into account the following:
• The size and conspicuousness of the religious symbol;
• The nature of the employee’s activity;
• The context in which the employee has to perform that activity; and
• The national identity of the Member State concerned.
If AG Kokott’s reasoning were followed by the CJEU it could mean that religious discrimination is treated as inferior to discrimination on the basis of sex, age and discrimination based on other ‘immutable characteristics’.
Background
Ms Achbita, a Muslim, was an employee of G4S. For over three years Ms Achbita observed the company policy of not wearing any religious, political or philosophical symbols while on duty (although she wore a headscarf exclusively outside of work). In April 2006 Ms Achbita informed G4S of her intention to wear a headscarf at work and following her decision to do so was dismissed in June 2006.
The AG’s Reasoning
AG Kokott held that the ban could not be regarded as direct discrimination based on religion because there was no evidence G4S had discriminated against the members of one religious community as compared to the followers of other religions or philosophical beliefs. The AG did consider, however, that if it could not be justified, then the policy could constitute indirect discrimination.
Article 4(1) of Directive 2000/78, provides that there must be a ‘genuine and determining occupational requirement’ and that the requirement must be proportionate and laid down in pursuit of a legitimate aim. The AG considered that Article 4(1) allowed consideration to be paid to the ‘occupational activities’ or ‘the context in which they are carried out’. Thus, while Achbita could perform her job as a receptionist just as well with a headscarf or without, she was working in a context where there was a dress code employees were required to comply with. The policy was legitimate and important for G4S’s corporate identity. Finally, the AG held the policy did not cause any undue prejudice to employees, because: ‘While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.’
An Opposing View – Bougnaoui-v-Micropole Univers, Case C188/15
The case of Bougnaoui-v-Micropole Univers, Case C188/15, presented a very similar fact pattern. Ms Bougnaoui was employed by Micropole SA as a design engineer. The company prohibited Ms Bougnaoui from wearing a headscarf when attending client premises (although AG Sharpston noted it was not clear whether this prohibition applied to all religious signs alike). Following a customer complaint for wearing a headscarf Ms Bougnaoui was dismissed.
AG Sharpston held that as a result of her dismissal for wearing her headscarf Ms Bougnaoui had been ‘treated less favourably on the ground of her religion than another would have been in a comparable situation. A design engineer working with Micropole who had not chosen to manifest his or her religious belief by wearing particular apparel would not have been dismissed.’ AG Sharpston held the treatment therefore constituted direct discrimination. In Achbita, however, AG Kokott argued that because G4S’ policy applied to ‘all visible religious symbols without distinction’ there was no discrimination between religions. AG Kolkott concluded that ‘the deciding factor’ was whether, ‘on account of religion, one person ‘is treated less favourably than another is, has been or would be treated’ and did not feel that Ms Achbita had been treated as such, stating G4S’ policy could just as easily have affected a male Sikh who wished to wear a Dastar (turban) at work.
AG Sharpston went on to conclude that the prohibition could not be considered a ‘genuine and determining occupational requirement’ under Article 4(1) of Directive 2000/78. Unlike in Achbita, little weight was accorded to the ‘context’ of a company policy (which in any event Sharpston indicated were value ridden). AG Sharpston considered that ‘the obvious application of the derogation [of Article 4] would be in the area of health and safety at work’. AG Sharpston indicated the derogation could be applied, for example, to a male Sikh employee who insisted on wearing a turban where a job required employees to wear protective headgear, or to a Muslim women working in a factory where attire could raise health and safety concerns.
Impact of the Opinions
In Achbita, AG Kokott’s distinction between private and public forms of religion led to her conclusion that religion could be ‘left at the door’. A criticism of the decision is that no account was taken of the fact that some religions lay a heavy emphasis on public expressions of faith and that the decision to wear a religious piece of clothing is less a choice, rather an inner conviction constituting an individual’s belief. AG Sharpston’s analysis that manifestation and belief cannot be separated is more accommodating and arguably more reflective of the reality of religious belief. The British Airways case before the ECHR (an air hostess’ discrimination claim following BA’s refusal to allow her to wear a crucifix while at work) recognised this distinction more readily. The ECHR held religious freedom ‘is primarily a matter of individual thought and conscience’ (Eweida –v- British Airways Plc 2008).
AG Kolkott concluded it was legitimate justification for an employer to want to protect and promote its brand, provided this is not an ‘inhuman ideology’. G4S’s provision of services to a wide range of clients in the public and private sector was held to be sufficient to justify the corporate emphasis laid on neutrality. While British Airway’s desire to project a certain corporate image was held to be legitimate, the ECHR held in Eweida that the Court of Appeal had accorded it too much weight. AG Sharpston emphasised that employers had a duty to accommodate employees’ religious expression, such as an approved uniform headscarf, and that financial interests should not be used automatically by companies as a justification for limiting religious expression.
The ECJ’s decisions are expected later in the year.