Case law: Uncertainty whether employers banning hijab at work are discriminating on grounds of religious belief
Employers who ban visible signs of religious belief at work, even on the basis of religious neutrality, should consider whether this could amount to unlawful discrimination on grounds of religious belief following a recent legal opinion.
This update was published in Legal Alert - September 2016
Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.
A Muslim employee in France wore a hijab (Islamic headscarf) at work. When she was recruited, it was made clear to her that as she was in a client-facing role, she would not be able to wear her headscarf all the time.
A client complained to her employer about her hijab and the employer asked her not to wear it on client visits. When she refused she was dismissed, and she claimed direct discrimination based on her religious beliefs.
There is direct religious discrimination if an employer treats an employee less favourably because of their religion or belief, unless it can be justified. Direct discrimination can be justified, and is therefore lawful, if it is a genuine occupational requirement - the otherwise discriminatory treatment is absolutely necessary in order for the employee to carry out their professional activities. Here, the French tribunals found no unlawful discrimination because there was a 'genuine and serious reason' for her treatment.
However, the question of whether her treatment (assuming it was direct discrimination) was in fact a genuine occupational requirement was referred to the European Court of Justice (ECJ). An Advocate General of the ECJ gave a preliminary opinion:
- The employee had been treated less favourably, because of her manifestation of her religion, than another employee would have been in comparable circumstances. Potentially, the dismissal was therefore unlawful direct discrimination.
- Justification of direct discrimination as a genuine occupational requirement should be rare. In this case, the employer had argued its commercial interests and client wishes justified its actions. The employee's treatment was not necessary on any other grounds. Interpreting the law so that discrimination could be justified on commercial grounds or because of interaction with clients would not be right.
The Advocate General found that dismissing the employee for wearing a hijab when with a client, even though contrary to a direct instruction from the employer and contrary to a general prohibition against wearing religious signs at work, was unlawful direct discrimination on grounds of religious belief. The genuine occupational requirement justification did not apply to make it lawful.
The opinion also addressed the issue of indirect discrimination (in case the ECJ later decided there was no direct discrimination). The Attorney General said that there could have been indirect discrimination and, if there had, it could not be justified as a proportionate means of achieving a legitimate aim as it was not proportionate for employers to require that religious beliefs are 'politely discarded' when employees enter the workplace.
The Advocate General's opinion is merely advisory, and the matter must still go to the ECJ (the ECJ usually follows an Advocate General's opinion).
However, there is an inconsistency between this opinion, and an earlier opinion in a previous case that it was not direct discrimination to ban the hijab at work if the employer operated a general policy of religious neutrality (ie all visible signs of religious, political and philosophical belief were banned).
The opinion also raises potential issues for UK employers, as UK law would usually categorise such treatment as indirect discrimination, not direct discrimination. The employee was not dismissed because she was a Muslim but because she was manifesting her beliefs at work in contravention of a policy or practice.
UK employers therefore face uncertainty over whether, and when manifestations of religious belief can be prohibited at work. If in doubt, seek professional advice to avoid a potential claim.
- UK employers who ban visible signs of religious belief at work, even as part of a policy to maintain religious neutrality in the workplace, should consider whether their ban amounts to potentially unlawful direct or indirect discrimination
Case ref: Bougnaoui v Micropole SA Case C 188/15 (and Achbita v G4S Secure Solutions NV Case C-157/15)
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.