• An employee was required to remover her Islamic headscarf when in contact with clients.
• One client complained that the ‘wearing of a veil had embarrassed a number of its employees’.
• She was then told ‘not to wear a veil’ on her next visit. She refused and was summarily dismissed.

The Advocate General has held that a company policy requiring an employee to remove her Islamic headscarf when in contact with clients constituted direct discrimination on the ground of religion or belief. Nicola Butterworth, Employment Law expert with Howes Percival comments.

“Dress codes have been making the headlines over the past months following a spate of challenges by employees. Although the Advocate General’s opinion is not binding, if accepted by the Court of Justice it is likely to lead to a further increase litigation in this area. To minimise the risk of discrimination when formulating dress code policies, businesses should carefully consider the requirements behind the policy and the impact of the dress code on their workforce.”

Dress codes specify what can and can’t be worn in the workplace. When imposed across the whole workforce, these policies can have a disadvantageous effect on certain groups of staff. Until now it has generally been understood that dress codes are more likely to give rise to issues of indirect discrimination, which may be objectively justified by employers, for example for health and safety reasons. If accepted, the Advocate General’s opinion would reshape this view, meaning that policies that ban religious apparel or symbols would also amount to a form of direct discrimination, to which employer’s would have little or no defence. The Advocate General’s opinion directly conflicts with the recent Advocate General’s opinion in Achbita v G4S Secure Solutions NV, a case involving similar facts (where a dress code which required “ideological neutrality” was applied). The Court of Justice is due to give judgments on both cases at the end of this year.

In Bougnaoui v Micropole SA, Ms Bougnaoui, a Muslim woman, was employed as an engineer by Micropole SA, a French IT company. She wore an Islamic headscarf which covered her head but left her face exposed. At the outset of her employment, she was informed by Micropole that as she had a client-facing role, she would not be able to wear the headscarf at all times. Following a complaint by one of Micropole’s clients, that Ms Bougnaoui’s ‘wearing of a veil had embarrassed a number of its employees’, she was asked by her employer whether she would comply with its client’s request ‘not to wear a veil’ on her next visit. Ms Bougnaoui refused and was summarily dismissed by Micropole. Micropole believed that in failing to agree to comply with its rules regarding the wearing of religious head coverings when in contact with customers, it was untenable for Ms Micropole to continue to carry out her functions on behalf of the company.

Ms Bougnaoui challenged her dismissal and claimed religious discrimination before the French courts. On appeal, the French Court of Cassation referred a question to the ECJ asking whether on assumption that Ms Bouganoui’s treatment was discriminatory, it could be justified as a genuine and determining occupational requirement, by reason of the particular occupational activities concerned or of the context in which they are carried out. In addressing this question, the Advocate General observed that Ms Bougnaoui was dismissed not on grounds of her religion (i.e. that she was a member of the Islamic faith) but on her manifestation of that religion (i.e. that she wore the Islamic headscarf). In the Advocate General’s view the prohibition laid down by the Equal Treatment Framework Directive extends not only to the religion or belief of an employee, but also to manifestations of that religion or belief. Ms Bougnaoui was treated less favourably on grounds of her religion since a design engineer working at Micropole who had not chosen to manifest their religious belief by wearing particular apparel would not have been dismissed.

Having decided that Ms Bougnaoui’s dismissal amounted to direct discrimination because of religion or belief, the Advocate General could not find any grounds to support Micropole’s position that her dismissal was justified. There was no evidence that Ms Bougnaoui was in any way unable to perform her duties as an engineer because she wore the Islamic headscarf. As such, the requirement by Micropole for Ms Bougnaoui not to wear a headscarf when in contact with its customers could not be a ‘genuine and determining occupational requirement’.