Religious dress at work: conflicting opinions from the ECJ

Religious clothing at work is a notoriously sensitive and difficult HR issue. Any decision to prohibit employees from wearing religious clothing or symbols must be approached with extreme care.

The European Court of Justice has recently issued preliminary opinions on two similar cases, one from Belgium and one from France. Both concern Islamic headscarves (hijabs), which cover the wearer’s hair but leave the face exposed. Unfortunately, these opinions conflict in many ways, creating some confusion and uncertainty.

Belgium: Achbita v G4S Secure Solutions

The Belgian case concerned a receptionist, Ms Achbita, employed by G4S and contracted out to work at another company. Three years after commencing her employment she insisted that she should be allowed to attend work wearing an Islamic headscarf. She was dismissed, as G4S required employees to adhere to the principle of strict neutrality and company policy prohibited the wearing of ‘any visible religious, political and philosophical symbols’.

Advocate General Juliane Kokott took the view that there had been no direct discrimination on the grounds of religion, as the ban was founded on a general rule preventing the wearing of symbolic clothing in the workplace. Ms Achbita had not been ‘targeted’ specifically because she was a Muslim.

She felt that the ban might constitute indirect discrimination (as it had a disproportionate impact on Muslim women who wished to wear headscarves) but that this could be justified in order to enforce a policy of religious and ideological neutrality in the workplace. The ban was necessary to implement company policy.

Interestingly, AG Kokott commented that employees ‘may be expected to moderate the exercise of their religion’ in the workplace, contrasting religion in this respect with other protected characteristics such as race, age and gender which an employee obviously cannot change or moderate. She suggested that outward manifestations of faith (such as religious clothing) could be ‘left at the door’ when an employee comes to work.

France: Bougnaoui v Micropole SA

The French case involved a design engineer, Ms Bougnaoui, employed by Micropole SA as an IT consultant. As part of her duties, she was required to meet with clients on client premises. Following a complaint from one of those clients that Ms Bougnaoui’s headscarf had ‘‘embarrassed’’ its employees and requesting that, ‘‘there should be no veil next time’’ she was asked by her employer to confirm that she would refrain from wearing the hijab on her next visit. She was dismissed when she refused to do this.

Advocate General Sharpston gave the view that the dismissal constituted direct discrimination on the grounds of religion or belief. She had been treated less favourably on the grounds of her religion because a design engineer who had not chosen to manifest his or her religious belief by wearing religious clothing would not have been dismissed.

The French Court had asked whether requiring Ms Bougnaoui to dress ‘neutrally’ when visiting clients could be considered a ‘genuine occupational requirement’. AG Sharpston felt that it could not, as there was nothing to suggest that she was unable to perform her duties as a design engineer because she wore a hijab. In fact, her dismissal letter referred explicitly to her professional competence.

Like, AG Kokott, she also felt that a company policy imposing an entirely neutral dress code would be likely to constitute indirect discrimination on religious grounds. Such a policy can be justified if it pursues a legitimate aim and is proportionate. AG Sharpton commented that it was difficult to see how Micropole’s ban could be regarded as proportionate in these circumstances.

In stark contrast to the views expressed in Achbita, AG Sharpston commented that, for many, ‘religious identity is an integral part of that person’s very being’. She remarked that ‘the requirements of one’s faith cannot be simply applied outside work but politely discarded during working hours’.

What next?

It is widely anticipated that the European Court will combine the cases of Achbita and Bougnaoui and determine both cases together in late 2016.

It is important to note that the recent standpoints expressed in these cases are simply the opinions of senior EU lawyers. Neither opinion is binding on the ECJ.

That said, the opinion of an Advocate General is regarded as highly persuasive and will usually be followed by the ECJ. It is unusual for the ECJ to be in the position of attempting to reconcile two directly conflicting opinions. It is difficult to predict whether the ECJ will choose to squarely follow one of these conflicting opinions or to forge a middle ground between the two.

The controversial opinion in Achbita arguably aligns more closely to existing EU case-law, as previous European cases have held the principle of ‘secularism’ to justify a prohibition on religious clothing (especially in public life).

On the other hand, the arguments set out in Bougnaoui seem more robustly reasoned. AG Sharpston conducts a close analysis of the evidence to determine whether the restriction on religious dress was a proportionate means of achieving a legitimate aim and whether wearing the hijab had any negative impact on the employee’s ability to perform her role.

Some of the key issues the ECJ is likely to tackle in its judgment are as follows: 

• Has past ECJ case law placed undue emphasis on the principles of state secularism and neutrality in countries such as Belgium and France? There is concern among some commentators that this might undermine the principles of equal treatment that are intended to apply across Europe.
   
• Is manifesting religion (for example by wearing an item of religious clothing) part of the protected characteristic of religion or behaviour associated with that characteristic? Can the two be separated out?
   
• Can a policy requiring neutral dress in the workplace constitute direct discrimination? Such a finding would raise the stakes for employers as direct discrimination cannot be justified. It has previously been assumed, at least in UK law, that a neutral dress code would give rise to issues of indirect, rather than direct, discrimination.

Hijabs at work: what is the UK position?

It is unlikely that a blanket policy requiring neutrality of dress would be considered a proportionate means of achieving a legitimate aim in the UK, as the underlying context is very different. It is important to note that secularism is a defined constitutional principle in France and Belgium. This is not the case in the UK where the state and religion are intertwined.

Although she was considering a French case, it is interesting to note that Advocate General Sharpston, who gave the opinion in Bougnaoui, is from the UK. This may perhaps be why the decision more closely reflects UK sensibilities.

Current UK law leaves it to every employer to make its own decision regarding religious dress. However, whichever opinion the ECJ ultimately favours on this issue, it is widely accepted that any uniform policy prohibiting religious clothing at work will raise the potential for claims of indirect discrimination.

If you choose to prohibit employees from wearing a hijab (or any other similar item of religious clothing), the Employment Tribunal will want to hear detailed evidence to explain exactly why you feel that any ban was a proportionate means of achieving a legitimate aim. Every case will turn on its own facts and justification will vary between different types of employers and even between roles for the same organisation.

You need to balance the potential discriminatory impact of any ban with the business need identified. An organisational preference (or indeed a client’s preference as in the Bougnaoui case) will not be enough. Your reasons must be genuine and specific, with health and safety being the most compelling (if this is relevant to the type of work you do).

The final decision of the ECJ in these cases will sharpen our understanding of when and how an employee might bring a successful religious discrimination claim and may lead to new arguments in a UK Tribunal. Broadly speaking though, at the moment, if you choose to prohibit religious clothing within your organisation you should be prepared to be challenged and to rigorously justify your decision.