Can employers ban the wearing of religious headscarves in the workplace?
“Autres temps, autres mœurs” is a famous saying in France which literally translates to "other times, other values," or, in English, simply "times change." Never a truer word spoken than in the case of Asma Bougnaoui (AB). AB is a Muslim who wears an Islamic headscarf, who was employed as a design engineer by French company Micropole SA (MSA).
When AB was recruited, MSA 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 to one of MSA’s customers, the customer complained to MSA that AB’s headscarf had “embarrassed” some of MSA’s staff working with her and demanded “no headscarf next time”.
MSA were keen to accede to their client’s wishes. MSA said it felt AB’s wearing a headscarf hindered the company’s development because it meant the company could not properly interact with its client. When MSA raised this issue with AB, AB stuck to her religious convictions and simply refused to comply with the customer’s wishes. Without further warning, MSA dismissed AB summarily. The dismissal plainly amounted to less favorable treatment on religious grounds. But the question was could it be justified based on MSA’s / MSA’s client’s request?
AB brought a claim in the Parisian labour court for unfair dismissal and religious discrimination. Whilst the tribunal and an appeals court compensated AB over the fact that she was dismissed without prior warning, it ruled that her dismissal was founded on a “real and serious cause”.
AB’s later appeal was dismissed and, on further appeal, the Cour de Cassation referred questions to the European Court of Justice (the ECJ). It asked whether a requirement not to wear an Islamic headscarf when providing IT consultancy services could be regarded as a “genuine and determining occupational requirement”, therefore falling outside the scope of the prohibition on discrimination.
The Attorney General said the EU directive should be interpreted strictly and that AB’s dismissal amounted to direct discrimination on those grounds. In a statement, it said: “The Advocate General rejects the idea that a prohibition on employees wearing religious attire when in contact with customers of their employer’s business may be necessary for the protection of individual rights and freedoms necessary for the functioning of a democratic society.”
France has some of the toughest legislation on headscarves in Europe. The hijab is banned in all public spaces. In 2004, France banned girls from wearing simple headscarves in state schools and all other religious symbols, such as crosses or turbans. Furthermore, by law, French public sector workers, including hospital staff, must be seen as “neutral” and cannot show religious belief with an outward symbol. Some nurses who wear the hijab must therefore take it off before arriving at work and put it back on when they leave. This law applies only to the public sector. A series of legal issues over private companies’ attitudes to staff wearing headscarves has led to recent discrimination complaints brought before French courts.
The Islamic headscarf is the subject of fierce debate in Europe. Many member states have legislated against it. The first country to ban the headscarf, France, now fines women who violate the law. Belgium has followed suit, and local bans on the headscarf are now in place in Switzerland and Italy.
What does this mean for you and your business?
Advocate General opinions are usually followed when the ECJ finally delivers its subsequent full judgment. ECJ rulings are legally binding on all EU member states and will be enforceable in the UK until ‘Brexit’ has finally been achieved. The ECJ is due to give judgment towards the end of the year.
This was not an indirect discrimination case. It was only a direct discrimination case. However, the Attorney General in this case did touch on justification for indirect discrimination. They emphasised the employer’s duty to try to find a solution, such as an approved uniform headscarf or the wearing of discreet symbols, but that in the last resort a business’s commercial interests may have to give way to the right of the employee to manifest their religious convictions.
The Attorney General also went on to say: “Occasionally, however, that may not be possible. In the last resort, the business interest in generating maximum profit should then in my view give way to the right of the individual employee to manifest his religious convictions. Here, I draw attention to the insidiousness of the argument, ‘but we need to do X because otherwise our customers won’t like it’”.
This is an important case. It’s important because it looks like the Advocate General is trying to extend dress codes into the realms of direct discrimination. Traditionally, dress code discrimination (think BA and the cross case) were seen as indirect discrimination. Why is this important? It’s important because an employer’s defence to direct discrimination is much more limited than for indirect discrimination as there is no general defence of objective justification.
What do you need to be doing now?
The issue of religious expression versus workplace dress codes is a highly contentious area. In light of the vile and sadly now all too frequent terrorist attacks across Europe by a minority of extremists, attacks on religious clothing is a casualty of our times.
The decision of the ECJ when it comes out at the end of the year will inevitably be tested in other national courts. Another case on similar grounds is also to be decided by the ECJ around the same time but the decision of the Advocate General in that case was very different. In Achbita v G4S, the Advocate General gave a conflicting opinion to that of Bougnaoui. In this case a ban on all religious, political and philosophical symbols did not amount to direct discrimination against a Muslim woman who wished to wear a headscarf. It will be interesting to see which way the ECJ goes.
Irrespective of that decision we recommend taking a respectful and balanced approach in every case where these issues are in play. Open dialogue is often the key. As the French say: Il faut tourner sa langue sept fois dans sa bouche avant de parler (one must turn the tongue seven times in the mouth before speaking).
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.