August 31, 2016

Dress Policy and Religious Discrimination

In Achbita v G4S Secure Solutions NV (Case C-157/15) and Bougnaoui v Micropole SA (Case C-188-15), two Advocate Generals (AG) of the European Court of Justice provided conflicting opinions when considering whether bans on religious headscarves amounted to religious discrimination.

In Achbita, the employer operated a dress code that prohibited employees from wearing “any visible signs of their political, philosophical or religious beliefs”. Ms Achbita was dismissed for refusing to comply with the policy by not removing her religious headscarf. The AG found that the employer’s conduct did not constitute direct religious discrimination because the dress code affected all employees in the same way; the only difference in treatment related to employees who wished to actively express a particular belief and those who did not. Therefore, in the AG’s opinion, this was not “less favourable treatment” directly linked to religion.

In Bougnaoui, Ms Bougnaoui was asked by her employer not to wear a religious headscarf when visiting clients. Ms Bougnaoui refused to do so, as a result of which she was dismissed. The AG stated that the right to manifest one’s religion or belief is an intrinsic part of the right to freedom of religion. The employer’s conduct amounted to direct discrimination on the basis that an employee who had not chosen to manifest their religious belief by wearing religious clothing would not have been dismissed. Such discrimination would only be lawful if the ban had been a “genuine occupational requirement” (e.g., if necessary for safety reasons), which the AG thought was not the case here.

Following these two conflicting opinions, the European Court of Justice’s ruling in these cases is eagerly awaited. We will keep you updated.

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