Louise McAloon, Partner, considers the issue of whether the wearing of Islamic Headscarves amounts to Indirect or Direct Discrimination with reference to recent conflicting opinions
In a legal Opinion to the European Court of Justice, Advocate General Sharpston has found that a French employer's ban on the wearing of Muslim headscarves by staff amounted to direct and/or indirect discrimination under the Equal Treatment Framework Directive - Bougnaoui and another v Micropole SA (Case C-188/15)
The Advocate General has given a pre-Judgement Opinion that the employee's dismissal for wearing an Islamic headscarf (hijab) at work, in breach of a direct instruction, was directly discriminatory on grounds of religion or belief. The prohibition on direct discrimination in the EU Equal Treatment Framework Directive (2000/78/EC) extends to manifestations of religion or belief, and it was clear that the employee had been treated less favourably on the ground of her religion than comparator would have been treated. An employee who had not chosen to manifest their religious belief by wearing particular apparel would not have been dismissed. The discrimination could not be defended on the ground of "genuine and determining occupational requirement" under Article 4(1) of the Directive. The Advocate General thought it was difficult to envisage circumstances, other than those related to serious health or safety concerns, in which a blanket ban on religious apparel could be justified. The hijab did not affect the performance of the employee's work and the employer in this case appeared to be relying purely on commercial interests based on the preference of its clients. Direct discrimination could not be justified on the ground of financial loss. The AG also gave her opinion as to whether the ban could be prima facie indirectly discriminatory, and whether it could be justified. While it may be legitimate for an employer to place restrictions on dress, she saw it as unlikely that the ban in this case could be seen as proportionate. The ECJ is due to give judgment later this year.
On the same topic, the ECJ in 2013 found that the UK had failed to protect a British Airways employee’s right under Article 9 of the ECHR to manifest her religious belief by wearing a visible cross outside her uniform and whilst BA’s wish to project a certain corporate image through its uniform policy was legitimate; it was not objectively justified (Eweida and others v United Kingdom  ECHR 37)
Like many issues, there are competing authorities and in another recent case, (Achbita and another v G4S Secure Solutions NV (Case C-157/15), Advocate General Kokott has given an opinion that a dress code which included the headscarf ban did not amount to direct discrimination based on religion or belief, and even if it did, it could be justified as a genuine and determining occupational requirement, under Article 4(1) of the Directive. She also considered that it would not be indirectly discriminatory, as it was objectively justified by the employer's legitimate commercial objective of religious and ideological neutrality.
Judgements are now awaited from the ECJ in relation to both the Bougnaoui and Achbita cases and whilst the concept of a neutral dress code will appeal to many employers, the European Court will have to balance the competing rights involved and similar to wearing of a Christian cross, may well find in favour of employees and their right to manifest their religious belief by wearing Muslim headscarves.
Louise McAloon is a Partner specialising in employment law in Worthingtons Solicitors, Belfast. For advice please see www.worthingtonslaw.co.uk or telephone 028 9043 4015