In 2015, the European Court of Justice (ECJ) was asked to consider two cases concerning whether a ban on employees wearing visible signs of political, philosophical or religious persuasions violates Directive 2000/78/EC1 (the "Directive"). The specific cases concerned Islamic women wearing headscarves in their workplaces.
On 14 March 2017, the ECJ gave rulings on both cases2. Before the rulings, there had been some uncertainty about the outcome of the cases due to statements from two Advocate Generals that differed in opinion. Our previous commentary can be read here and here.
Islamic women's rights to wear headscarves in their workplace
Both cases concerned Islamic women's rights to wear headscarves in their workplace.
In one of the cases (Belgium), G4S Secure had an unwritten rule that banned employees from wearing religious, political or philosophical signs when at work. Despite this unwritten rule, Samira Achbita, a female receptionist, continued to wear a headscarf even when she ordered not to. On this basis, she was dismissed on 12 June 2006.
On 13 June 2006, with the consent of the works committee, the unwritten rule was officially added to the G4S work regulation with the following wording:
"The employees are banned from wearing visible signs of their political, philosophical or religious persuasions and/or perform rituals accordingly".
In the other case (France), a female project engineer, Asma Bougnauoi, was employed by the company Micropole SA on 15 July 2008. In connection with the employment, Micropole SA specified that they fully respected the principle of freedom of opinion and of the individual's religious beliefs, but also specified that Asma Bougnauoi was not allowed to wear a headscarf under any circumstances when interacting internally or externally with the customers of the company.
When Asma Bougnauoi refused to remove her headscarf whilst visiting customers, despite being ordered to do so, she was dismissed.
Subsequently, both women took legal action, claiming that the dismissals were discriminatory treatment due to their religious beliefs.
The basic rule in the Directive is that an employer is not allowed to discriminate against employees due to religion, political persuasion or similar and therefore the ECJ had to determine the extent to which this rule applied in these cases.
At the beginning of the judgment, both rulings comment that the Directive does not define the term "religion" and as such "religion" is to be interpreted with the board approach adopted in the European Convention on Human Rights and Charter of Fundamental Rights of the European Union as this was probably the intended approach for the Directive. As such, the term "religion" is to be interpreted to include both the internal rule, "forum internum", i.e. the right to have a religion, and the external rule, "forum externum", i.e. the freedom to manifest one's religion publicly.
In the G4S case, the question was whether the internal rule implied that the employees were treated differently because of their religion or belief and if so, whether this difference of treatment was a direct discrimination as defined in Article 2(2)(a) of the Directive.
In the Micropole SA case, the question was whether the willingness of an employer to take into account the wishes of a customer, who no longer wanted to have the services of that employer provided by a worker wearing an Islamic headscarf, constituted a genuine and determining occupational requirement as per Article 4(1) of the Directive.
Article 4(1), is an exception to Article 2 (1) and (2) as the provision states that:
"Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate."
In the G4S case, the ECJ concluded that an internal rule does not constitute a difference of treatment directly on the grounds of religion or belief as defined in Article 2 (2)(a) of the Directive. Their reasoning was that the internal rule in this case treated all the employees equally as all employees were indiscriminately instructed to wear neutral clothing as opposed to such signs.
In the Micropole SA case, the ECJ stated that if an internal rule exists, it must be considered if the rule would constitute a direct or indirect discrimination pursuant to Article 2. On the other hand, if an internal rule does not exist (which, according to the information at hand, they concluded it did not), it must be considered if the willingness of an employer to take into account the wishes of a customer, who no longer wanted to have the services of that employer provided by a worker wearing an Islamic headscarf, constituted a genuine and determining occupational requirement as referred to in Article 4.
The ECJ remarked that only in very limited circumstances can a characteristic regarding religion constitute a genuine and determining occupational requirement. Thus, the ECJ concluded that:
"Article 4(1) must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision."
Since the ECJ was not asked to consider exactly the same questions in each case, the two rulings are not exactly the same. However both the rulings state that if an internal rule regarding a ban on wearing religious clothing does exist, it is not necessarily evidence of direct discrimination provided that the rule treats all the employees of the company equally by indiscriminately instructing that all employees wear neutral clothing.
It is up to the national courts to ascertain if the rule would constitute indirect discrimination, for instance because a ban is only intended for Islamic headscarves (see premise 36 in the Micropole SA case and premise 44 in the G4S case). If a defined internal rule does exist and if this existing internal rule constitutes a direct or indirect discrimination, the question to ask is whether it may constitute an exception under Article 4 and thus be allowed. In this regard, the ECJ interprets the provision more "strictly" stating that, as a rule, "religion" cannot be considered a "genuine and determining occupational requirement". Thus, the European Court of Justice states in the Micropole SA case (premise 40) that:
"… the concept of a ‘genuine and determining occupational requirement’, within the meaning of that provision, refers to a requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out. It cannot, however, cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer."
On the other hand, the ECJ does not directly dismiss that religion may constitute a "genuine and determining occupational requirement", however a customer's opinion on whether the employees can wear religious headscarves is not sufficient per se.
Bird & Bird's comments
With the Føtex ruling from 2005 (U2005.1265H), the Danish Supreme Court established that it was not illegal, indirect discrimination to ban an employee from wearing a religious headscarf when the company has a written employment policy which clearly describes the clothing rules and where these rules are consistently enforced by the employer. The G4S case is consistent with this and confirms the above conclusion.
In conclusion, it may be inferred that if a company has clear internal rules for banning the employees from wearing visible religious signs, a ban on wearing a headscarf is in compliance with the EU legislation regarding discrimination unless the specific implementation and enforcement of the ban implies indirect discrimination. It is up to the national courts to determine if this is the case.
If the company does not have this set of rules, the company cannot justify a specific ban on wearing headscarves merely by complaints from customers.
So, there is a bit more to the rulings of the ECJ than the initial media coverage implies.
1. Directive on equal treatment in employment and occupation, which is the basis for the Danish Non-discrimination Act.
2. C-157-15 og C-188/15