Facts

B was a design engineer. When at work, she wore a hijab which covered her head, leaving her face exposed. She was asked by her employer not to wear the hijab when visiting a client, following a complaint. She refused to do so and was dismissed.

B brought a claim for discrimination based on her religious beliefs which was dismissed by the French Labour Tribunal and by the appeal court. The case was them referred to the CJEU for a preliminary ruling on whether her employer’s policy was well founded on the basis of a “genuine and determining occupational requirement” under the EU Equal Treatment Directive.

The decision

The Advocate-General advised that B’s dismissal constituted unlawful direct discrimination on the grounds of religion or belief. They noted that the prohibition on direct discrimination extends to manifestations of religion or belief, such as the wearing of clothing or jewellery.

The “genuine and determining occupational requirement” exception only applied where it was absolutely necessary in order to undertake the professional activity in question. For example, it would be proportionate to require a Sikh employee not to wear a turban if the employee worked in an area that required the wearing of protective headgear.

What to take away

This decision contrasts with the opinion given recently by another of the CJEU’s Advocate-Generals in the case of Achbita v G4S Secure Solutions NV.  Here, the Advocate-General concluded that the employer could justify a ban on wearing headscarves by its general policy of neutrality, provided that the ban was applied consistently to all visible signs of religious or philosophical beliefs.

It will be interesting to see if, and how, the CJEU is able to reconcile these two opposing opinions when the cases come before the full court. Although an Advocate-General’s opinion is not binding on the CJEU, in the majority of cases in the past the CJEU has ruled consistently with opinions.

In the meantime, both the Achbita and Bougnaoui cases are a reminder that the area of discrimination based on religion or belief is not straightforward, and that each case must be considered fully on its own merits.

For further information on how this issue might affect your organisation, particularly in the context of health, social care and housing provision, please contact Victoria Watson, Jacqui Atkinson or Claire Reynolds.