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Is banning the Islamic headscarf direct discrimination?

Dress codes are often used in the workplace to ensure workers are safe and dressed appropriately.  A recent European court case considered whether dismissing an employee for wearing an Islamic headscarf at work, in breach of an instruction not to, was directly discriminatory.

Direct discrimination

In the UK, direct discrimination is defined by section 13(1) of the Equality Act 2010. It occurs where someone treats another less favourably than they treat or would treat others, because of a protected characteristic. Religion or belief is a protected characteristic.  At European level, Article 2 of the Equal Treatment Framework Directive (2000/78/EC) prohibits direct and indirect discrimination on several grounds, including religion or belief.

Hijab

Ms Bougnaoui, a Muslim woman, worked as a design engineer.  When she was recruited, her employer explained to her that she would not be able to wear her headscarf at all times, as there was a ban on all religious signs when visiting a customer. Following a site visit, the customer complained about her wearing the headscarf and requested that she not wear it in future.  Her employer raised this with her but she refused to comply with the customer’s wishes and was dismissed.  Her case was unsuccessful in the French courts.

European Court of Justice

On appeal, her case was referred to the European Court of Justice (ECJ). The question for the ECJ was, if this treatment was discriminatory, whether it could be justified as a “genuine and determining occupational requirement,” under Article 4 of the directive.

Advocate General Eleanor Sharpston gave her opinion that it did amount to direct discrimination.  It was accepted that Ms Bougnaoui had not been dismissed on the ground of her religion itself (in other words, because she was a Muslim).  However, Advocate General Sharpston was of the view that the directive extended to protecting employees from discrimination on the ground of the manifestation of their religion.  It was clear that she had been treated less favourably than other employees in a comparable situation, as another employee not wearing anything to manifest their religion would not have been dismissed.

As for whether the ‘genuine occupational requirement’ defence was available, the Advocate General considered that there was nothing to indicate that Ms Bougnaoui had been in any way less able to the duties of a design engineer as a result of wearing a headscarf.

Health and safety

The Advocate General’s opinion seeks to broaden the definition of direct discrimination and makes clear that any occupational requirement defence will be limited to matters that are absolutely necessary in order to undertake the activity in question. For example, it may be proportionate to exclude a Sikh employee who wore a turban for religious reasons from working in a post that required protective headgear, in order to ensure health and safety.

The Advocate General suggested that a more general ban on religious signs and symbols would only fall outside the scope of direct discrimination if the prohibition was “neutral”.   This may be the case if a policy prohibited not only religious items, but also items reflecting a person’s identity in other, non-religious, ways, such as wearing of club’s football shirt.

Advocates General

The Advocate General Sharpston’s opinion appears to conflict with that of Advocate General Juliane Kokott in the case of Achbita v G4S Secure Solutions.  In that case, Advocate General Kokott thought that prohibiting the headscarf could be justified where the ban was applied consistently to all visible signs of religious belief.

Neither of the opinions is currently binding on the ECJ, which will give its judgment in both cases later this year.  It is to be hoped that the decisions of the court provide some clarity on the issue for employers. Given the current uncertainty, employers should consider how they can cooperate with employees to allow them to manifest their faith in a way that does not conflict with any occupational requirement, rather than enforcing a prohibitive dress code.

For more information on any of the issues raised in this article or on employment matters in general, please contact Lyons Davidson’s employment law team.

Posted on Nov 15th, 2016 by Lyons Davidson