The European Court Of Justice (ECJ) And The Banning Of Headscarves In The Workplace

Two highly anticipated cases involving the legality of banning headscarves in the workplace were decided by the ECJ this week.

Achbita and anor v. G4S Secure Solutions NV (Case C-157/15) involved a company that provided security, guarding and reception services. The employee handbook stated that employees were not permitted to wear any religious, political or philosophical symbols while on duty. An employee, after three years of working for the company, decided that she wanted to start wearing a headscarf. The employee was eventually dismissed for refusing to remove the headscarf.

Bougnaoui and anor v. Micropole SA (Case C-188/15) involved an IT engineer who was told by her employer that she would not be able to wear her headscarf at all times. There was not, however, a blanket prohibition on the wearing of visible signs of political, philosophical or religious belief. The employee went on a site visit and wore a headscarf. The customer complained to the company about the fact that she had worn a headscarf and requested that she did not do so in the future. The company raised this issue with the employee; however, the employee refused to comply with the customer's request. She was then dismissed.

The ECJ held:

In relation to a blanket prohibition: that a company rule prohibiting the wearing of visible signs of political, philosophical or religious belief without distinction is not directly discriminatory; that such a blanket prohibition may give rise to indirect discrimination but this may be objectively justified by an employer's policy of neutrality; and that the policy of neutrality was an objective justification only if it applied solely to customer-facing roles. Where there is no blanket prohibition if in response to a customer complaint about the wearing of a headscarf an employer bans the wearing of headscarves, this will be discrimination; and such discrimination will not be capable of being justified on the basis of a "genuine and determining occupational requirement" under Article 4 of the EU Equal Treatment Framework Directive. There has been much press commentary on...