Direct discrimination and religious dress at work: two important cases to watch

Direct discrimination and religious dress at work: two important cases to watch

Employment Law solicitor, Nicola Evans, discusses Bougnaoui v Micropole Univers and Achbita v G4S Secure Solutions NV. Two controversial cases considering similar issues, but with wholly different Advocate General (AG) decisions.

First, a quick recap on direct discrimination...

Direct discrimination occurs where, because of a protected characteristic, a person is treated less favourably than others (without the protected characteristic).

Unlike indirect discrimination, it can’t be justified. But there is a ‘genuine occupational requirement’ exception, whereby having or not having a protected characteristic is paramount to the role.

The application of any genuine occupational requirement must be a proportionate means of achieving a legitimate aim.

Bougnaoui v Micropole Univers

The background

Ms Bougnaoui is a Muslim who was employed by Micropole SA as a design engineer in France.

During the recruitment process, the company made it clear to Ms Bougnaoui they had a religious neutrality policy. As she would be in contact externally with clients, she wouldn’t be permitted to wear a headscarf.

She wore a headscarf at work and, following a customer complaint, she was asked to remove it in the future. She refused and was dismissed.

Ms Bougnaoui brought a claim for discrimination in France, which was referred to the European Court of Justice (ECJ).

The AG’s opinion

In the AG’s opinion, the employee had been treated less favourably on the grounds of her religion than another would have been in a comparable situation. So the treatment constituted direct discrimination.

The AG also stated that, in her opinion, the discrimination didn’t fall within the genuine occupational requirement exemption, and that only situations relating to health and safety concerns which would justify such a blanket ban.

Achbita v G4S Secure Solutions NV

The background

Ms Achbita is a Muslim who was an employee of G4S in Belgium.

For over three years she followed the company policy of not wearing any religious, political or philosophical symbols while at work. (Although she wore a headscarf exclusively outside of work.)

In April 2006, she informed G4S of her intention to wear a headscarf at work.  Following this decision, she was dismissed.

She issued a claim for discrimination through the Belgian Court system.

The question of whether the company policy of prohibiting the wearing of any visible signs of religion amounted to direct discrimination was put to the ECJ.

The AG’s opinion

The Advocate General argued the company’s policy could not be regarded as direct discrimination. Because the policy affected all employees equally, regardless of religion.

She justified her opinion by stating that religion is the only protected characteristic over which an employee can exert an influence. So an employee could be reasonably expected to moderate the exercise of their religion in the workplace.

The Advocate General went on to say that even if the ban did amount to indirect discrimination, this policy was a genuine occupational requirement. It could not be obtained through any other means, so it’s justified.

What these two cases mean for you

As you can see, we have two decisions on similar issues, made by two different AGs, that are in stark contrast to each other.

So we recommend not introducing any potentially controversial policies until we have the final judgment.

The decision in Bougnaoui v Micropole Univers suggests that when a potentially discriminatory policy is introduced, to not fall foul of legislation, it must be shown to fall within the genuine occupational requirement exemption.

According to this opinion commercial considerations (such as wanting to be a religion neutral workplace) would be insufficient for the exemption to apply.

On the face of it, Achbita v G4S Secure Solutions NV suggests having a policy that affects all employees equally will not amount to direct discrimination.

While it could amount to indirect discrimination, in this case the AG suggested that it could be justified as part of a religion-free workplace policy.

Some commentators have suggested this case has been oversimplified. Because it suggests that the wearing of a headscarf is an option rather than a religious compulsion. And it doesn’t take into account that some religions place more emphasis on others on public expression.

As this is only an Advocate General’s opinion, it’s not binding on the ECJ or on national courts.

Watch this space for the final judgements on both these cases, which are expected soon.

Need advice? Get in touch today

Please call Nicola Evans on 01482 324252.

Or email Nicola here.

You can find out more about our Employment Law services here.

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