Banning Islamic headscarves in the workplace is not direct discrimination rules the European Court of Justice. But the headline doesn’t tell employers the whole story.

Well this is a headline grabber isn’t it?  But before far right supporters get carried away and ban people from wearing religious dress in the office, the facts of these two cases that were referred to the European Court of Justice (ECJ) need to be carefully considered. 

The decision of the ECJ was a joint judgment of two cases referred to it from the French and Belgian national courts. Both cases involved employers who had dismissed their employees for refusing to remove their headscarves. 

For those of you who may have missed it a summary of the cases are set out below.

Ms Achbita was employed by G4S in Belgium as a receptionist from 2003. At the time, G4S had an 'unwritten rule' that employees should not wear any political, religious or philosophical symbols at work. Subsequently, G4S introduced a formal ban on wearing any political, religious or philosophical symbols at work because they had a policy of “neutrality”. 

Achbita told G4S she wanted to wear the Islamic headscarf at work but was told this would not be allowed because it was in contravention of their policy. Achbita was dismissed in June 2006 for disobeying G4S’s request.  Achbita claimed she was being directly discriminated against on the grounds of her religion.  The matter was referred to the ECJ for clarification. The question for the ECJ was whether the prohibition on wearing a headscarf at the workplace constituted direct discrimination if the employer's rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace.

In the second case, Asma Bougnaoui, a design engineer, was dismissed from Micropole SAA (an IT consultancy), after a customer complained that their staff were “embarrassed” by her headscarf during a meeting. She had been told before taking the job that wearing a headscarf might pose problems for the company’s customers. At first, Bougnaoui wore a bandana and then later switched to a veil.

What did the ECJ find?

In Achbita’s case, the ECJ found that companies should be allowed to have policies banning the wearing of religious and political symbols. The ECJ said the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief.

Remember however that Achbita was not a case where the ECJ were asked to consider whether indirect discrimination had occurred.  The ECJ did state however that a policy of banning headscarves can in some cases be justified.  It is this point that has led to some of the recent attention grabbing headlines.

In Bougnaoui’s case the ECJ ruled that she had suffered direct race discrimination. It said customers’ wishes not to be served by a worker wearing a headscarf did not give companies a get-out clause from EU anti-discrimination law.

Because there was no official policy banning the headscarf at Micropole, “the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement,” the court said.

The national courts in France and Belgium will now be left to settle the disputes in question.

Overall, seasoned employment lawyers and HR advisors will not be taken in by the publicity surrounding these two cases.  Broadly speaking not too much has changed.  Direct discrimination is always going to be hard to prove for a Claimant as Achbita found out.  Claimants, if they are savvy, will always run and indeed focus their efforts on an indirect discrimination claim which, in the alternative, may be easier to win as an employer will have far higher hurdles to clear to defend the claim against it.

What does this mean for you or your business?

Rights group Amnesty International said the ECJ rulings were "disappointing" and "opened a backdoor to... prejudice". Despite the finding of the ECJ, these cases are fact specific; it does not give employers carte blanche to ban the wearing of religious dress and other things they may not agree with.

The message is this: if an employer has a clear policy on “neutrality” and treats its entire staff consistently in accordance with the policy, and for good reason, then there may not be discrimination.  In the absence of such a policy of neutrality then in order to justify a decision not to allow people to wear headscarves in its workplace the burden on an employer is going to be high. Employers are still likely to fall foul of indirect discrimination if an employer’s internal rule puts people of a particular religious group at a particular disadvantage unless it is objectively justified on the grounds of a legitimate aim. 

Objective justification could be the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary.  “Embarrassment” caused to the client is not enough as in Bougnaoui’s case.

Employers who wish to ban the wearing of headscarves and other religious headscarves without good reason, such as a clearly defined policy of religious neutrality, or on clear health and safety grounds, will still likely fall foul of the law.

What do you need to be doing now?

The ruling, which is more nuanced than a straightforward ban, sows confusion about which religious symbols can be worn at work. In many ways the ECJ’s decision goes against an earlier ruling from the European Court of Human Rights that allowed crosses to be worn.  This will not be the last we have heard of this issue.

Our advice to employers in a case like this, is to be reasonable and considerate of their employees’ religious dress unless it interferes with their job or there is another very good reason to consider banning it.  If in any doubt, take legal advice.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.