Conflicting opinions from the Advocate General on whether it is unlawful to ban a Muslim employee from wearing an Islamic headscarf when in contact with clients

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In the French case of Bougnaoui v Micropole SA, the Advocate General of the Court of Justice of the European Union (CJEU) has given an opinion that a ban on a Muslim female employee wearing an Islamic headscarf (hijab) whilst in contact with clients is unlawful religious discrimination.

Ms Bougnaoui was employed by Micropole SA as an IT engineer. She was a practising Muslim and wore her hijab at work and when she visited clients. The hijab covered her head but left her face exposed. Her employer asked her not to wear her headscarf when visiting clients after a client made a request that she did not wear it at their next meeting. Ms Bougnaoui refused to comply with this request and was subsequently dismissed.

The French Labour Tribunal held that her dismissal was well founded on the basis of a “genuine and serious reason”. This decision was upheld on appeal. The matter was then referred to the CJEU for a preliminary ruling on whether Micropole’s policy of requiring an employee to remove her hijab when in contact with clients was a “genuine and determining occupational requirement” under Article 4(1) of the Equal Treatment Directive.

Prior to the case being heard in full by the CJEU (and as is usual practice) the Advocate General gave an opinion. She concluded that Ms Bougnaoui’s dismissal amounted to unlawful direct discrimination on the grounds of religion or belief.  She commented that the prohibition on direct discrimination extends to manifestations of religion or belief (that is to say, the fact that Ms Bougnaoui wore a headscarf) and it was clear that she had been treated less favourably on the grounds of her religion than a comparator would have been treated in a comparable situation. She stated that, in this case, there was no “genuine and determining occupational requirement”. This was in contrast to, for example, a situation where it might be proportionate to prohibit (on health and safety grounds) a male Sikh employee who wore a turban from working in a post that required the wearing of protective headgear or where a female Muslim employee who wore a hijab was operating potentially dangerous machinery with moving parts.

The opinion of the Advocate General in Bougnaoui seems to directly conflict with the recent opinion of a different Advocate General of the CJEU in the case of Achbita v G4S Secure Solutions NV [2016].  In Achbita, a female Muslim receptionist was dismissed after she insisted on wearing her hijab to work in contravention of the employer’s policy of neutrality in dress. The Advocate General concluded that prohibiting the wearing of a headscarf could be justified by an employer’s general policy of neutrality as long as the ban applied consistently to all visible signs of religious or philosophical beliefs.

The opinion of the Advocate General in a CJEU case is always a precursor to the actual hearing of the case by the Court and is not binding on the CJEU or on the UK Courts and Tribunals. That said, it is common practice for the CJEU to follow the Advocate General’s opinion.  It will therefore be interesting to monitor the development of these two cases once the full decisions of the CJEU are available.

Employers will no doubt be aware that, contrary to some tabloid headlines at the time, the Achbita opinion does not give ‘carte blanche’ for UK employers to impose a headscarf ban at work. The Achbita case involved a Belgian company.  It would be unusual in the UK for an employer to prevent Muslim female employees from wearing a hijab where there were no health and safety risks in doing so.  It is important that employers continue to follow equal opportunities policies and give careful consideration to any proposed restrictions or ‘bans’ when it comes to uniform or dress.