- A company policy requiring an employee to remove her Islamic headscarf when in contact with clients constitutes unlawful direct discrimination.
- A design engineer was sent by her employer to clients. A customer complained that the veil she wore “embarrassed” a number of its employees.
- The employer discussed this with her and asked her to observe a principle of “neutrality” in relation to her dress when dealing with clients. She refused and, as a result, was dismissed.
Advocate General Opinion: Unlawful direct discrimination where employee required to remove Islamic headscarf when in contact with clients – Employment lawyer, Nicola Ihnatowicz at Trowers and Hamlins discusses.
The Advocate General’s Opinion in Bougnaoui v Micropole Univers has just been published and concludes that a company policy requiring an employee to remove her Islamic headscarf when in contact with clients constitutes unlawful direct discrimination. In the Advocate General’s view the requirement will not be a genuine occupational requirement. Although the freedom to conduct a business is a genuine principle of EU law it is subject to, amongst other things, the need to protect the rights and freedoms of others.
In Bougnaoui, a design engineer was sent by her employer to clients. A customer complained that the veil she wore “embarrassed” a number of its employees, and asked that this did not happen again. Mrs Bougnaoui’s employer discussed this with her and asked her to observe a principle of “neutrality” in relation to her dress when dealing with clients. She refused and, as a result, was dismissed.
She brought a claim for discrimination and France’s Court of Cassation referred the issue to the Court of Justice of the European Union (CJEU), asking if the wish of a customer no longer to have the services of the company provided by an employee wearing an Islamic headscarf will constitute a genuine and determining occupational requirement under Article 4(1) of the Equality Directive.
The Advocate General’s Opinion in Bougnaoui conflicts with the recent Advocate General Opinion in Achbita and another v G4S Secure Solutions. In Achbita a ban on wearing Islamic headscarves was held to be a genuine and determining occupational requirement, and the employer’s adherence to a neutral dress code was held to be both legitimate and proportionate. In the Advocate General’s view the ban was appropriate as a way of implementing a legitimate corporate policy of neutrality. In Bougnaoui the Advocate General considered that although a neutral dress code policy might be in the interests of the employer’s business and therefore constitute a legitimate aim, it was difficult to see in this case how the employer’s prohibition could be regarded as proportionate.
It will now be left to the CJEU to resolve the disparity between Achbita and Bougnaoui. In the meantime it’s worth remembering the decision of the European Court of Human Rights in Eweida and others v United Kingdom where the UK was held to have failed to protect Ms Eweida’s right to wear a discrete cross outside her uniform. This decision suggests that EU law places an obligation on employers to accommodate a manifestation of an employee’s religious beliefs which the Opinion in Achbita, with its view on the legitimacy of a neutral dress code, seems to be at odds with.
As it stands, until a decision is reached by the CJEU, employers should ensure that they avoid dress codes that restrict an employee’s right to wear things associated with their religious beliefs. If there is a prohibition within a dress code then it will be up to employers to ensure that the balance between the reason for the prohibition and the disadvantage to the employee is properly considered.