Headscarves and the tension between Neutrality and Equality in Europe
The ECJ has given judgment in two cases concerning wearing manifestations of faith, and in particular Muslim headscarves, at work. Those judgments touch on the core of Europe’s values and its approach to equality.
In Achbita and Anor v G4S Secure Solutions NV (Case C-157/15) the ECJ has found that that a blanket prohibition on all employees wearing manifestations of faith (including the Muslim headscarf) does not amount to direct discrimination against Muslims. Furthermore, that whilst such a prohibition may amount to indirect discrimination, it can be justified if applied consistently in pursuit of an employer’s policy of projecting an image of policy of political, philosophical and religious neutrality.
In Bougnaoui and Anor v Micropole SA (Case C-188/15) the ECJ was asked a different question, namely, whether a prohibition on religious manifestations could be regarded as a genuine occupational requirement. The ECJ held that, if there is no general prohibition on all staff, and the employer relies on a customer’s objections to being served by an employee who wears an Islamic headscarf as a reason to dismiss that employee, such treatment is discriminatory and cannot be defended on the basis of a ‘genuine and determining occupational requirement’ under Article 4 of the EU Equal Treatment Framework Directive (No.2000/78).
These decisions, have been long anticipated, because of the conflicting Advocate Generals’ opinions given in each case last year.
What do the judgments tell us?
Does a ban on wearing manifestations of faith at work constitute direct discrimination against those who wear headscarves?
No. The ECJ has held that a blanket policy on all employees prohibiting any manifestation of belief does not amount to direct discrimination (Achbita).
Is a ban on manifestations of faith at work indirect discrimination on religious grounds?
It may be, and (in relation to headscarves) it is likely to be.
Is a ban on manifestations of faith justifiable as a proportionate means of achieving a legitimate aim?
In Achbita, the ECJ has held that such a rule can be justified in pursuit of an employer’s policy of political, philosophical and religious neutrality.
The ECJ went further in Achbita and gave guidance as to how national courts should approach the question of justification. The ECJ held that:
(i) An employer’s desire to project an image of neutrality towards both its public and private sector customers would be considered a legitimate aim.
(ii) Further to that, the policy should be considered appropriate so long as it was genuinely pursued in a consistent and systematic manner.
(iii) If the policy only covered workers who interact with customers then it could be considered necessary.
(iv) However, the ECJ held that the national court (in Achbita) would have to consider whether G4S, without taking on an additional burden, could have alternatively offered Ms Achbita a post not involving any visual contact with customers instead of dismissing her.
(v) The ECJ, in its judgment, states that it is for a national court to take into account the ‘interests involved in the case’ (paragraph 43) and limit the restrictions on the freedoms concerned to what is strictly necessary. Whilst that statement is not very clear, Advocate General Kokott stated, in the Opinion that the ECJ followed generally, that the following considerations are also relevant to the question of justification and should be taken into account:
(a) The size and conspicuousness of the religious symbol.
(b) The nature of the employee’s activity.
(c) The context in which she has to perform that activity.
(d) The national identity of the Member State concerned.
Can a UK employer impose a ban on wearing or manifestations of faith?
A UK employer should be cautious in imposing a ban on manifestations of faith in the workplace based on the judgment in Achbita. There are significant indications that the considerations that applied in Achbita relating to Belgium could differ in other states :
(i) In Achbita, as set out above the ECJ stated that it is for the national court to take into account the ‘interests involved in the case’ (paragraph 43) and limit the restrictions on the freedoms concerned. Furthermore the Advocate General set out a series of factors that national courts should take into account in determining whether a prohibition on manifestations of faith at work are justifiable. One of those considerations is the national identity of the member state concerned. The national identity of the UK, with its long tradition of accommodating different religions and their manifestations in the workplace, may well be regarded as different to that of Belgium. As an element of national identity – neutrality – was a significant consideration in the Advocate General’s opinion that was followed by the court in Achbita, and as the national identity of the UK may well be interpreted as being different to that of Belgium, then employers should be cautious in taking Achbita as authority to prohibit manifestations of faith in the same way in the UK.
(ii) Further, Article 9 of the European Convention of Human Rights provides that everyone has the right to freedom of thought, conscience and religion.
In Achbita, the ECJ cited paragraph 94 of the judgment of the ECHR in Eweida & Others v United Kingdom CE:ECHR:2013 which held that some restriction on the wearing of religious symbols at work was permissible. That paragraph of the judgment in Eweida however, suggests strongly that (a) there is a margin of appreciation in each state and (b) there being no evidence that the wearing of hijabs or turbans had damaged the employer’s (British Airways) brand in that case, then the Article 9 right to freedom of religious expression was not overborne by the employers wish to project a certain image.
In the UK where multiculturalism and the expression of religious plurality have long been embraced, employers should be cautious in thinking they would be found to be justified in imposing a ban on well-established manifestations of religious faith in public facing roles.
The clearest indication of the pluralism and tolerance that would be expected from employers in the workplace is given in paragraph 94 of Eweida, (the passage expressly relied on by the ECJ in Achbita). That passage states:
‘On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image.’
As such, employers in the UK should be cautious of regarding Achbita as a license to prohibit the wearing of manifestations of faith at work in the UK.
Does the ‘genuine and determining occupational requirement’ defence under Article 4 of the EU Equal Treatment Framework Directive apply to a ban on manifestations of faith or headscarves?
Save in very limited circumstances, such as where a manifestation of faith would compromise safety, no (Bougnaoui).
Will customer objections to staff wearing manifestations of faith justify the imposition on a ban on doing so?
No. In Bougnaoui, the ECJ held that customer objections to employees wearing headscarves do not mean that it is a genuine occupational requirement under Article 4 that employees abstain from wearing manifestations of faith. The Article 4 exception is for use in very limited circumstances where a requirement is an absolute necessity to perform the job, such as health and safety, and not the subjective views or wishes of customers.
The facts of the cases
Achbita and Anor v G4S Secure Solutions NV (Case C-157/15)
In Achbita, G4S had an employee code of conduct that stated employees ‘are not permitted to wear any religious, political or philosophical symbols while on duty’. Ms Achbita worked for G4S in Belgium as a receptionist until she was dismissed on 12 June 2006 by reason of her stated intention to wear the Islamic headscarf. She brought a claim of wrongful dismissal and both direct and indirect discrimination. Both claims failed at first instance and on appeal and were referred to the ECJ.
The ECJ found that a blanket requirement (applied equally and consistently to all) that no staff could wear visible manifestations of political, philosophical or religious believes did not amount to direct discrimination.
With regard to indirect discrimination the ECJ went on to hold that such a rule could give rise to indirect discrimination, but that in their view such indirect discrimination could be justified.
The ECJ then gave guidance as to how objective justification should be dealt with in such cases by national courts by stating that:
(i) The employer’s desire to project an image of neutrality towards both its public and private sector customers would be considered a legitimate aim.
(ii) Further to that, the policy should be considered appropriate so long as it was genuinely pursued in a consistent and systematic manner.
(iii) If the policy only covered workers who interact with customers, then it could be considered strictly necessary.
(iv) However, the national court (in that case) would have to consider whether G4S could, without taking on an additional burden, have alternatively offered Ms Achbita a post not involving any visual contact with customers instead of dismissing her.
(v) It is for the national court to take into account the ‘interests involved in the case’ (paragraph 43) and limit the restrictions on the freedoms concerned to what is strictly necessary. As stated above, whilst that statement is not very clear, Advocate General Kokott stated, in the Opinion that the ECJ followed generally, that the following considerations are also relevant to the question of justification and should be taken into account by the national court:
(a) The size and conspicuousness of the religious symbol.
(b) The nature of the employee’s activity.
(c) The context in which she has to perform that activity.
(d) The national identity of the Member State concerned.
Bougnaoui and Anor v Micropole SA (Case C-188/15)
In Bougnaoui, Ms Bougnaoui worked as a design engineer for MSA, a company operating in France. When she was recruited, MSA made it clear that due to the customer-facing nature of her role, she would not be able to wear her headscarf at all times.
Following a site visit, a customer complained that Ms Bougnaoui had worn her headscarf which had upset a number of the customer’s employees and requested that she not do so in future. When MSA raised this issue with Ms Bougnaoui, she refused to comply with the customer’s wishes and so MSA dismissed her.
Ms Bougnaoui unsuccessfully claimed religious discrimination before a Parisian labour court. Her appeal was dismissed and on further appeal, the Cour de Cassation referred the question to the ECJ of whether, on the assumption that B’s treatment was discriminatory, it could be justified under Article 4(1) of the Framework Directive, namely that the customer’s wish was a ‘genuine and determining occupational requirement’.
The ECJ held that if there is no general prohibition on manifestations of faith, and the employer relies on a customer’s objections to being served by an employee who wears an Islamic headscarf as a reason to dismiss that employee, such treatment is discriminatory and cannot be defended on the basis of a genuine and determining occupational requirement.
Article 4 is only available in the very limited circumstances where the requirement related to religion is objectively dictated by the nature of the occupational activities concerned or the context in which they are carried out. Article 4 does not cover subjective considerations, such as the employer’s willingness to take account of the particular wishes of the customer.
Commentary
These are without doubt testing times across Europe where the jurisprudence on equal treatment is more important than ever. It is therefore of concern that the ECJ has appeared to accord significant weight to both the margin of appreciation and the national identity of a country (as indicated by the AG’s opinion in Achbita) to justify a prohibition on manifestations of faith. Such a prohibition if applied more widely could deny whole swathes of society, who regard such manifestations as a fundamental tenet of their beliefs, public-facing roles.
In one respect the judgment in Achbita does provide useful clarity. The finding that a universal prohibition on the wearing of manifestations of faith, applied consistently, does not amount to direct discrimination, is undoubtedly correct, and a welcome clarification. The law on equality, complex as it is, is not served by ambiguity.
However, the troubling aspect of the judgment is in relation to the justification of policies which will impact detrimentally on particular religions. As is so often the case, the arena of justification is where the competing interests of different beliefs, races, and considerations fall to be balanced in a considered way. The approach to justification in Achbita is concerning.
It is difficult to see how such a rule is consistent with Article 9 of the of the European Convention of Human Rights which provides that everyone has the right to freedom of thought, conscience and religion. There is a risk that national courts may be led by the judgment in Achbita into wrongly conflating neutrality and uniformity with equality, and thereby eroding the freedom of religion under Article 9.
In practical terms, such an approach if followed could mean the rights of the followers of a number of religions are severely curtailed in the work place, limiting such employees to non-public facing roles. Furthermore, the normative effect of such a rule on the societal view of tolerance of differences is potentially damaging.
In giving her Opinion to the Court in Bougnaoui (paragraph 133), AG Sharpston warned against the ‘insidiousness of the argument from an employer that we need to do X because otherwise our customers won’t like it’ where the customer’s attitude may itself be indicative of prejudice based on one prohibited factors such as religion.
AG Sharpston stated that it seemed to her particularly dangerous to excuse the employer from compliance with an equal treatment requirement in order to pander to that prejudice. The concern raised by the judgment in Achbita is that, under the labels of the margin of appreciation and national identity, the ECJ risks legitimising religious discrimination . The issue is sure to return to the courts in due course.
