INSIGHT: Can an employer ban Islamic headscarves at work?
Employees' choice of attire can create problems in the workplace – and employers are well advised to issue policies based on, for example, moral, health and safety grounds to dictate what their employees wear. However, employers' policies must not discriminate against employees on various grounds such as religion, race or gender.
A specific issue arose recently in a French court about religious clothing, namely the wearing of an Islamic headscarf: can an employer ban a practising Muslim employee from wearing such clothes when meeting clients because the clients have asked for the ban? And if that employer dismisses the employee for refusing to comply with the ban, is that dismissal lawful?
A preliminary ruling has decided no, an employer cannot impose such a ban and a consequent dismissal would be unlawful. It remains to be seen whether the appeal court (the CJEU) will apply that ruling.
The facts of the French case
In Bougnaoui v Micropole SA, the employee, Ms Bougnaoui, was a design engineer employed by Micropole SA who are an IT consultancy. A practising Muslim, she wore an Islamic headscarf and was so attired when visiting clients. One client claimed her attire had caused "embarrassment" and asked Micropole SA to ensure she was not wearing the veil next time. When asked to do this by her employer (who claimed that her wearing of a headscarf made it impossible to carry out her functions on behalf of the company,) Ms Bougnaoui refused and was dismissed. She claimed the dismissal was unlawful.
In the first instance, the French tribunal found that Ms Bougnaoui had been lawfully dismissed because the dismissal was based on a genuine and serious reason.
Ms Bougnaoui appealed. However, the tribunal's decision was upheld on that appeal and the issue was then referred to the Court of Justice of the European Union (CJEU). The CJEU in turn referred the matter to the European Union Attorney General (AG) for a preliminary ruling. In effect, the CJEU asked the AG for a non-binding opinion to help them decide the issue.
The issue the AG was asked to consider was whether the headscarf ban was "a genuine and determining occupational requirement". Such requirements cannot amount to discrimination on the grounds of religion or belief. If the headscarf ban was an occupational requirement, then the dismissal would have been fair.
The law in this case arises out of EU human rights and discrimination laws that give individuals freedom of religion and freedom to show their religion or beliefs. The latter freedom is subject only to legal limitations relating to public safety, order, health, morals or the protection of others such rights.
The AG has now given his opinion (the "preliminary ruling") to the effect that "the freedom to manifest one's religion or belief [by wearing a headscarf]... is an intrinsic part of the freedom of religion. Ms Bougnaoui was treated less favourably on the ground of her religion since a design engineer who had not chosen to manifest his or her religious belief would not have been dismissed."
In effect, the AG considered the headscarf ban amounted to direct discrimination on the ground of religion or belief. It was clear that MsBougnaoui could still perform her duties as a design engineer while wearing a headscarf. She had clearly been treated less favourably than another employee without the headscarf would have been.
On this basis, Ms Bougnaoui's dismissal was unlawful and not a proportionate response by Micropole SA to her refusal to comply with the ban.
There are a few points to bear in mind
- This issue was referred to the AG for a preliminary ruling only. This process enables the courts and tribunals of EU Member States to ask for clarification of EU law. The AG's opinion does not bind the CJEU. That court now has to consider the case and will give its judgment at a later date. The court may or may not take the AG's opinion into account.
- Finally, be aware that there is another Advocate General's decision to the effect that a headscarf ban was lawful. However, this other decision was made in the context of an employer implementing a policy of religious neutrality consistently across the whole workplace. It will be interesting to see what the CJEU decides in both of these cases later this year.
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