UK: Conflicting opinions from EU Advocate-Generals on headscarf bans create uncertainty

Earlier in the year we reported the controversial opinion of the Advocate-General in Achbita v G4S Secure Solutions that a ban on all visible signs of religious, philosophical and political beliefs was not unlawful direct or indirect discrimination, as it was justified by the employer's corporate policy of neutrality (see here).

A second Advocate-General's Opinion in the case of Bougnaoui v Micropole Univers published in July takes a contrary view. The employee's dismissal for refusal to remove her hijab at work when in contact with clients was a dismissal for manifesting a religious belief, which the Advocate-General treated as direct discrimination rather than indirect. It did not fall within the EU Directive's genuine occupational requirement defence given that the employer's justification (of complying with a client request) was in essence financial, and financial loss cannot justify direct discrimination. The defence is only available where the requirement is absolutely necessary to undertake the job duties in question, and the Advocate-General found it hard to envisage any such circumstances other than health and safety requirements. This contrasts with the opinion in Achbita that an employer can in effect define neutrality of appearance as an essential requirement of the job duties.

The opinion also considered the position if there is a company rule imposing an entirely neutral dress code on employees. This would be potentially indirect discrimination against those who hold a religious belief requiring them to wear particular apparel. Whether such a rule is proportionate in light of the employer's legitimate business interests must also take into account that religious identity is "an integral part of a person's very being" which cannot be left at the door of the workplace (and not a matter of choice as suggested in Achbita). The Advocate-General suggested that it could be proportionate for employers to require religious symbols to be discrete where possible, or to be in company colours, or to have the face and eyes uncovered where the role includes customer contact, but it is unlikely that a prohibition on a head-covering would be justified.

The treatment of restrictions on manifesting religious belief as direct discrimination could be problematic in the UK, given that UK tribunals have traditionally treated such cases as indirect discrimination allowing the issue of justification to be considered. There is no general justification defence for direct discrimination, and the occupational requirement defence in the Equality Act 2010 is even narrower than under the Directive.

This is the first time that religious discrimination cases have come before the ECJ; it is not bound to follow Advocate-General opinions and its ruling is keenly awaited given the sensitivity of the issues involved.