• Headscarf Ban was Discriminatory AG Decides

    In Bougnaoui and anor v Micropole SA, Advocate General Sharpston has given the opinion that an employee’s dismissal for wearing an Islamic headscarf at work, in breach of a direct instruction, was directly discriminatory, and could not be defended on the ground of ‘genuine and determining occupational requirement’ under Article 4(1) of the EU Equal Treatment Framework Directive (No.2000/78). Advocate General Sharpston’s conclusion on both points contradicts the opinion given by Advocate General Kokott in Achbita and anor v G4S Secure Solutions NV (Case C-157/15), a case involving similar facts that was heard by the European Court of Justice at the same time. The ECJ is due to give judgment in both cases towards the end of the year.

    B, a Muslim woman, worked as a design engineer for M SA, a company operating in France. When she was recruited, M SA made it clear that, due to the customer-facing nature of her role, she would not be able to wear her headscarf at all times. Following a site visit, a customer complained that B had worn her headscarf and requested that she not do so in future. When M SA raised this issue with B, she refused to comply with the customer’s wishes and so M SA dismissed her. B unsuccessfully claimed religious discrimination before a Parisian labour court. Her appeal was dismissed and, on further appeal, the Cour de Cassation referred questions to the ECJ. It asked whether, on the assumption that B’s treatment was discriminatory, it could be justified under Article 4(1), which provides that a difference of treatment based on a protected characteristic may be lawful where, by reason of the nature of the particular occupational activities concerned or the context in which they are carried out, the characteristic constitutes a ‘genuine and determining occupational requirement’.

    Advocate General Sharpston began by confirming that the dismissal was an act of direct discrimination. Although it was unclear whether M SA had imposed a ban on the Islamic headscarf, or on all religious signs when attending a customer’s premises, it was plain that B’s dismissal was linked to a prohibition on the wearing of religious apparel. Although she may not have been dismissed because she was Muslim, the prohibition on direct discrimination in the Directive extends to manifestations of religion or belief, and it was clear that B was treated less favourably on the ground of her religion than another would have been treated in a comparable situation. For example, a design engineer who had not chosen to manifest his or her religious belief by wearing particular apparel would not have been dismissed.

    As for whether the ‘genuine occupational requirement’ defence was available, Advocate General Sharpston accepted that the difference of treatment was based on a ‘characteristic related to’ religion or belief within Article 4(1). However, she could not accept that the characteristic was a ‘genuine and determining occupational requirement’. In her view, the derogation must be interpreted strictly – recital 23 to the Directive states that it will only be available ‘in very limited circumstances’ – and so it cannot be used to justify a blanket exception for all the activities that a given employee may potentially engage in. The derogation might, for example, exclude a male Sikh employee who insisted on wearing a turban from working in a post which required the wearing of protective headgear; or a female Muslim employee working on potentially dangerous factory machinery if her religious attire could give rise to serious concerns on safety grounds. However, Advocate General Sharpston thought it difficult to envisage other circumstances in which the derogation might be engaged on religious grounds. On the present facts, M SA appeared to be relying on its commercial interests to justify applying Article 4(1). However, direct discrimination cannot be justified on the ground of financial loss. Furthermore, while M SA could rely on its freedom to conduct a business, which is one of the general principles of EU law, that freedom may legitimately be subject to restrictions in the interests of protecting the rights of others, including the right not to be discriminated against. Advocate General Sharpston observed that to interpret Article 4(1) in the manner proposed by M SA would risk ‘normalising’ the derogation, which could not be right.


    Report Thomson Reuters

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