Company policy requiring an employee to remove her Islamic headscarf when in contact with clients amounts to unlawful direct discrimination, according to an Advocate General’s Opinion.
Advocate General Eleanor Sharpston gave her Opinion in the French case of Bougnaoui and ADDH v Micropole SA (Case C 188/15). An Advocate General’s Opinion is not binding but is nearly always followed by the European Court of Justice.
Design engineer Asma Bougnaoui wore an Islamic headscarf which covered her head but left her face exposed. Following a complaint from a client, Bougnaoui was asked not to wear her headscarf when meeting clients. She refused and was dismissed.
Advocate General Sharpton said the discrimination would only be lawful if based on an “occupational requirement”, and that this requirement should be interpreted strictly. It must be a “genuine and determining” one, which is proportionate to the legitimate objective pursued.
Sarah Rushton, employment partner at Moon Beever, says: “The decision contrasts sharply with the Opinion in May 2016, in Achbita v G4S Secure Solutions NV, which concluded that prohibiting the wearing of a headscarf did not constitute direct discrimination based on religion if that ban was based on a general company rule which was not prejudiced against one or more particular religions or against religious beliefs in general.
“Both decisions are only preliminary decisions and are therefore not binding. Employers should continue to be cautious in the application of dress codes in this difficult and sensitive area. They should ensure that the dress code can be objectively justified and that a balance is struck between the reason for any dress code and the disadvantage likely to be suffered by the employee.
“Cases of this nature are very difficult to predict and often turn on specific facts. In 2008 in the UK Employment Tribunal, a Muslim woman was awarded compensation for indirect discrimination when she was refused a job at a hairstylists because she refused to remove her headscarf. Arguments that it was a necessary part of the job to have hair on display failed.
“However, in another case, a female nursery worker who refused to remove her jilbab, a full-length covering worn by some Muslim women, failed in her claim for religious discrimination as other women could wear an ankle length jilbab which did not present a tripping hazard. The requirement to not wear floor length coverings was therefore not discriminatory (Begum v Pedagogy Auras UK Ltd [2015] UKEAT 0309_13_2205)."
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