17 March 2017 #Employment
We wrote last year about two cases concerning individual female Muslim employees who wished to wear a headscarf at work. In each case, this was not permitted by the employer and each employee was dismissed.
At the preliminary stage, there was an apparent contradiction between the view of the Court of Justice of the European Union (CJEU) in the French case of Bougnaoui v Micropole SA and the Belgian case of Achbita and another v G4S Secure Solutions NV.
This week saw the long-awaited final decisions in these cases.
In Achbita, G4S had a rule that employees could not wear visible signs of their political, philosophical or religious beliefs in the workplace. The CJEU decided that this ‘neutrality rule’ could not be direct discrimination because it treated any employee in the same way. However, because the rule could disadvantage employees of a particular religious group more than others, it could possibly amount to indirect discrimination.
Unlike direct discrimination, indirect discrimination claims can be defended if it can be shown that the measure in question is a proportionate means to achieve a legitimate aim.
In Bougnaoui, it was not clear whether there was any internal neutrality rule such as that in Achbita. However, Ms Bougnaoui had been told by her employer that her headscarf had “embarrassed” clients who had requested that she not wear it in future.
The CJEU decided that, in the absence of a ‘neutrality rule’, the employer could not rely on the genuine occupational requirement defence which was only available in very limited circumstances. Subjective considerations, such as the willingness of the employer to take account of the particular wishes of a customer were not sufficient.
However, the CJEU has not clarified whether it would be permissible for an employer to base a decision to adopt a ‘neutrality rule’, at least in part, on customers’ wishes.
Employers should therefore continue to treat policies banning employees wearing any visible signs of political, philosophical or religious belief with extreme caution and seek legal advice if they are intending to implement such a policy.