European court gives scope for employers to ban headscarves (and other religious symbols)

Seven veils for seven sisters, chance photo by Ben Patey

The European Court of Justice gave judgment last week in two cases concerning prohibitions against the wearing, for religious reasons, of a headscarf or hijab in the workplace. (NB Neither case was about the more restrictive facial veil or niqab.)

In Case C‑157/15, Samira Achbita, with the help of the Belgian Centre for Equal Opportunities and Combating Racism, had brought proceedings against G4S Secure Solutions NV, where she worked as a receptionist, following her dismissal for continuing to wear an Islamic headscarf despite a prohibition on employees wearing any visible signs of their political, philosophical or religious beliefs in the workplace and on engaging in any observance of those beliefs.

In Case C‑188/15, Asma Bougnaoui, with the help of the French Association for the protection of human rights, brought proceedings against Micropole SA, where she worked as a design engineer, following her dismissal for wearing an Islamic headscarf despite their request that she not do so when working for the company’s customers after they objected.

The court ruled in the first case that since the prohibition on religious manifestation was a general one it did not constitute direct discrimination under article 2(2)(a) of Council Directive 2000/78/EC on equal treatment (the Framework Directive), and that it might constituted indirect discrimination under article 2(2)(b) if it impinged with particular force on persons of one religion as opposed to another. If so, the question whether it could nevertheless be justified was one for the referring court to decide.

In the second case the court rejected the argument that the prohibition on the wearing of the headscarf to cater for a customer’s preference was a “genuine occupational requirement” within the meaning of article 4(1) of Directive 2000/78.

The overall effect is that the court has confirmed that employers can impose a general ban on all religious manifestations in the workplace, on the basis of a desire to project a neutral, secular image; but they can’t impose specific bans on specific types of religious symbolism just to satisfy the whims or prejudice of customers.

Taken together the decisions are not particularly surprising, but the first one does appear to send a fairly clear signal to employers that, so long as they comply with the technicalities, they can justify indirect discrimination against Muslim women on the basis that less obvious religious symbols such as crucifix pendants (or indeed the smudge of ashes a woman MP was recently criticised for manifesting on Ash Wednesday), are also barred.

But the decisions have been criticised as pro-employer and as supporting a general trend in Europe against minority religious manifestation. Moreover, they appear to create a risk of friction between the jurisprudence of the Court of Justice in Luxembourg and that of the Court of Human Rights in Strasbourg, which ruled in Eweida v UK [2013] 57 EHRR 8 that a corporate ban on the wearing of religious symbols in so far as it prevented Ms Eweida from wearing a small cross on a necklace was disproportionate and violated her rights under article 9 of the Human Rights Convention.

For commentary on this case see:

Schona Jolly QC, on the Cloisters chambers blog, Achbita & Bougnaoui: A strange kind of equality

Dylan Brethour, on Rights Info, Employers Can Ban Headscarves and Religious Symbols — As Long As The Rules Apply To Everyone

Steve Peers, EU Law Analysis blog, Headscarf bans at work: explaining the ECJ rulings

Ronan McCrea, EU Law Analysis blog, Faith at work: the CJEU’s headscarf rulings

Poppy Rimington-Pounder, on the UK Human Rights blog, European Court unveils controversial new ruling

You can also read our law reporter’s case summaries of both cases here:

Achbita and another v G4S Secure Solutions NV (Case C‑157/15) [2017] WLR (D) 175

Bougnaoui and another v Micropole SA (Case C‑188/15) [2017] WLR (D) 176

The illustration we’ve used above was its own news story last week, reported by the BBC, when photographer Ben Patey spotted seven nuns (or sisters, unless one of them was Mother Superior) wearing the traditional wimple along with the rest of their habits, at the tube station Seven Sisters.

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.