Islamic headscarf ban is direct discrimination

02 August 2016

In the French case of Bougnaoui v Micropole SA, Ms Bougnaoui was employed by Micropole SA as a design engineer. She was a practising Muslim and wore an Islamic headscarf (hijab) at work and when she visited clients. The headscarf covered her head but left her face exposed. Following a complaint from a client, who requested that there should be "no veil next time", Ms Bougnaoui was asked not to wear her headscarf when visiting clients. She refused to do so and was subsequently dismissed.

The French Labour Tribunal dismissed Ms Bougnaoui's claim for discrimination based on her religious beliefs and held that the dismissal was well founded on the basis of a "genuine and serious reason". This decision was upheld on appeal.

The matter was then referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether Micropole's policy requiring an employee to remove her hijab when in contact with clients was a "genuine and determining occupational requirement" under Article 4(1) of the Equal Treatment Directive (2000/78/EC).

Advocate General Sharpston concluded that Ms Bougnaoui's dismissal for wearing a hijab when in contact with customers of the employer's business, in contravention of a direct instruction and a client's religious neutrality principle constituted unlawful direct discrimination on the grounds of religion or belief. Further, the Advocate General stated that the prohibition on direct discrimination extends to manifestations of religion or belief (that is to say, the fact that Ms Bougnaoui wore a headscarf) and it was clear that she had been treated less favourably on the ground of her religion than a comparator would have been treated in a comparable situation.

The Advocate General added that discrimination would only be lawful if based on an "occupational requirement", which must be "genuine" and limited to matters which are absolutely necessary in order to undertake the professional activity in question. For example, it would be proportionate to exclude, for health and safety reasons, a Sikh employee who insisted on wearing a turban for religious reasons from working in a post that required the wearing of protective headgear.

The decision is in sharp contrast to the opinion of Advocate General Kokott in Achbita v G4S Secure Solutions NV [2016] (Case C-157/15), which concluded that prohibiting the wearing of a headscarf can be justified by an employer's general policy of neutrality and where the ban applied consistently to all visible signs of religious or philosophical beliefs.

Readers will be aware that the Advocate General's opinion is merely an opinion and is not binding on the CJEU, which could reach a different conclusion.

With thanks to Daniel Barnett’s employment law bulletin which provided the details of this case.