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Discrimination and the headscarf (Part 2)

Discrimination and the headscarf (Part 2)

For the second time in as many months, the headscarf has been the subject of a discrimination Opinion in the Court of Justice of the European Union (‘CJEU’). For more information on the first case on this subject, click here.

This case concerned Ms Bougnaoui (‘B’), a design engineer who worked for a French Company, Micropole SA (‘M’). B was dismissed from her job without any warning, after she had attended a client meeting, following which a complaint was made that her headscarf had “embarrassed” some of its staff working with her. The clients demanded “no headscarf next time”. M asked B to comply with this request on her next visit to the client, and when she refused she was dismissed.

By way of background, France has some of the strictest legislation in Europe about the wearing of headscarves. The full veil, or niqab, is banned in public places and schoolgirls are banned from wearing the headscarf, or hijab, in state schools. All public sector employees must be seen as neutral and are forbidden from wearing religious symbols.

B unsuccessfully challenged her dismissal in the French Labour Tribunal and her discrimination appeal was dismissed (although she received compensation for the fact that she had been dismissed without notice). M had said that it felt that B wearing a headscarf hindered the Company’s development because it meant that she could not properly interact with the client.

The French Supreme Court asked the European Court to rule on the following point:

whether a requirement not to wear an Islamic headscarf when providing IT consultancy services could be regarded as a “genuine and determining occupational requirement” (and therefore within the justification for discrimination on grounds of religion or belief under Article 4(1) of the EU Equal Treatment Framework Directive).

Advocate General (AG) Sharpston found that B’s dismissal was discriminatory – and although it wasn’t clear if the ban was on just Muslim headscarves or all religious clothing, it was clear that she was treated less favourably because she was Muslim.

As to the ‘genuine occupational requirement’ justification, AG Sharpston said that this could only apply in very limited circumstances and couldn’t be used to justify a ban in this way. The situation where this exception might be appropriate was, for example, where a Sikh employee insisted on wearing a turban in a role which required the role of protective headgear or similar safety requirements that necessitated specific clothing.

In this Opinion it was decided that financial loss or commercial interests were not strong enough grounds on which to justify discrimination.

This Opinion is completely contrary to Advocate General Kokott’s Opinion in Achbita v G4S Secure Solutions, a case which had similar facts in which a Muslim receptionist was sacked because she wore a headscarf. That case concluded that prohibiting the wearing of a headscarf could be justified by an employer’s general policy since the ban applied consistently to all visible signs of religious or philosophical beliefs.

As a reminder, an Advocate General’s Opinion merely expresses a preliminary view and is not binding on the European Court, which can come to its own view. This decision will be one for employers (especially those with dress codes on religious symbols) to look out for.