EU Court clarifies law on employers’ headscarves bans

15 Mar 2017 | by Monckton Chambers

The EU Court of Justice today handed down two judgments in cases concerning employers’ restrictions on the wearing by employees of Islamic headscarves and religious symbols.  In giving its judgments, the Court has clarified the law on the distinction between the concepts of “direct discrimination” and “indirect discrimination”.  The judgments will be welcomed by the UK Government, which intervened in the two cases to urge the Court to maintain a clear principled distinction between the two concepts.

The first judgment was given in the case of Achbita (Case C 157/15), an employment dispute in Belgium concerning a Muslim woman who was dismissed from her employment as a receptionist.  The reason for her dismissal was her refusal to stop wearing a headscarf at work, which her employer considered to be contrary to its policy prohibiting employees from wearing “visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs”.  The particular issue referred by the Belgium court to the EU Court of Justice was whether the employer’s actions should be classified as “direct discrimination” (since they targeted Ms Achbita’s clothing choices because of their link with her religious beliefs) or as a potential case of “indirect discrimination” (since a prohibition on wearing clothes associated with particular religious or other beliefs limits the clothing choices of all employees regardless of their religious beliefs, albeit that the prohibition would in practice have a particular impact on people whose religious beliefs require them to dress in a manner associated with those beliefs).

The second judgment was given in the case of Bougnaoui (Case C 188/15), an employment dispute in France concerning a Muslim woman who was dismissed from her employment as a design engineer working on projects for the employer’s customers.  The reason for her dismissal was her refusal to stop wearing a headscarf at work, following requests made by the employer in response to complaints they had received from their customer at whose premises Ms Bougnaoui was working.  The French court, which appears to have classified the case as one of “direct discrimination”, asked the EU Court of Justice whether the employer’s instruction to Ms Bougnaoui to stop wearing the headscarf could be justified by reason of a “genuine occupational requirement” constituted by the employer’s commercial need to comply with the demands of its customer.

In its two judgments, the Court of Justice explained that an employer’s restriction on an employee’s clothing choices is to be classified as “direct discrimination” only if that restriction is on the basis of the employee’s religion (which would be the case if, for example, an employer placed certain restrictions on the dress choices of Muslim employees but not on those of other employees).  Dress restrictions that apply to all employees without regard to their religious beliefs will, however, constitute “indirect discrimination”, and will therefore be unlawful, where they result, in fact, in employees with religious or other “protected characteristics” being put at a particular disadvantage and are not “objectively justified”.

The Court of Justice took pains to emphasise that its judgments should not be seen as allowing employers to restrict, without good reason, employees from dressing compatibly with their religious beliefs.  In particular, the Court stated that requests or complaints made by an employer’s customers could not, in themselves, constitute objective justification, since otherwise employers would be able to justify discrimination by relying on their customers’ prejudices.

The Court of Justice’s judgments essentially reflect the submissions of the UK Government, which urged the Court to: (a) promote legal certainty by limiting the concept of “direct discrimination” to situations where an employer has subjected an employee to particular treatment on the basis of his or her race, sex, religion, sexual orientation or other “protected characteristic”; (b) query the French court’s classification of the Bougnaoui case as one involving “direct discrimination”; and (c) emphasise that restrictions on employees’ manifestations of their religious beliefs cannot be justified by reference to the prejudices of an employer’s customers.

Monckton barrister Alan Bates represented the United Kingdom in both cases.