In a hotly anticipated judgment, the Court of Justice of the European Union (CJEU) has found that a policy of neutrality which banned workers from wearing any political, religious or similar items was not directly discriminatory and although it could be indirectly discriminatory, such a policy could be justified (depending on the facts of the case). The decision comes in the conjoined cases of Muslim employees who were dismissed after they refused to remove their headscarves at work, in contravention of their employer’s policies.
The cases are Achbita and Anors V G4S Secure Solutions NV (Achbita) in Belgium and Bougnaoui and another v Micropole SA (Bougnaoui) in France. Last summer two Advocates-Generals gave conflicting formal opinions on the cases (discussed in our blog “Accommodating religion in dress codes at work” which can be found here) and the CJEU has this week provided its decisions.
In Achbita, the employer (G4S) operated a strict policy of ‘neutrality’ and banned all employees from wearing any political, religious or similar signs. A Muslim employee told G4S that she wanted to start wearing a headscarf. G4S told her that she could not. When she indicated that she intended to attend work in the headscarf, she was dismissed.
In Bougnaoui, it is unclear whether the employer (Micropole) had a similar policy. A customer complained that the employee had worn her headscarf during a site visit and requested that she did not do so in future. The employee refused to comply with the customer’s wishes and was dismissed.
Findings – Achbita
The Court decided that G4S’s policy treated all employees in the same way, requiring them all to dress neutrally. Therefore, the policy did not amount to direct discrimination because it did not treat any religion less favourably than any other.
The CJEU went on to find that the policy could potentially involve indirect discrimination; if the neutral policy resulted in individuals of a particular religion or belief being put at a particular disadvantage, it would be indirectly discriminatory unless it could be justified as a proportionate means of achieving a legitimate aim. The Court found that an employer’s desire to project an image of political, philosophical and religious neutrality in its relations with its customers relates to the fundamental freedom to conduct a business and is a legitimate aim if the policy only covers workers who come into contact with customers and the policy is genuinely pursued in a systematic and consistent manner.
The question of whether Ms Achbita could (and should) have been moved to a non customer-facing role rather than dismissed was left open by the CJEU for the national court to decide.
Findings – Bougnaoui
The Court in Bougnaoui had to decide on the scope of the “genuine and determining occupational requirement” exception to the general prohibition of discrimination. The question was whether an employer taking account of a customer’s wish not to be provided with services by a worker wearing an Islamic headscarf could be a genuine occupational requirement. The court restated the general proposition that such requirements had to be justified and the required characteristic must be necessary by reason of the nature of the particular occupational activities concerned or the context in which they are carried out. Furthermore, the objective must be legitimate and the requirement must be proportionate.
The CJEU made it clear that only in very limited circumstances would a certain characteristic, especially one related to religion, constitute a genuine and determining occupational requirement (which is an objective concept, not subjective). The Court held that an employer’s willingness to take into account the particular wishes of a customer did not constitute a genuine and determining occupational requirement.
The headlines about these cases are likely to say that employers can “ban Islamic headscarves”, but in fact the CJEU simply says that policies which ban all expressions of political or religious (or non-religious) belief can potentially be “justified” as a proportionate means of pursuing a legitimate aim. It is therefore open to employers to argue that such policies are not unlawful. Employers need to be aware that these issues are very much fact-sensitive.
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