Bougnaoui and anor v Micropole SA; 13 July 2016
At the end of May, Advocate General Kokott in the Belgium case of Achbita and anor v G4S Secure Solutions NV, expressed the view that an employer was not directly discriminating in banning an employee from wearing an Islamic headscarf in the workplace, and that while the measure could be indirectly discriminatory, it could potentially be justified in pursuance of their policy of religious and ideological neutrality. This might be thought to be consistent with the judgment of the ECHR in SAS v France EqLR 590 in which any interference with rights to private life under Art 8 ECHR, to religion under Art 9 or to non-discrimination under Art 14 by banning the veil in public was found to be justified.
A different analysis is proffered by Advocate General Sharpston who has delivered her Opinion on a referral to the ECJ from the Cour d’Appel de Paris in the case of Bougnaoui and anor v Micropole SA. The first question is whether dismissing an Islamic employee for wearing her headscarf at work, contrary to specific instructions, is directly discriminatory, and if so whether it can be defended under Article 4(1) of the EU Equal Treatment Framework Directive (No.2000/78), as being a ‘genuine and determining occupational requirement’?
The basis for Microple’s decision to dismiss Ms Bougnaoui was that a client had found her wearing of a headscarf to be embarrassing to a number of their employees. It was argued that there was a genuine and determining occupational requirement that Ms Bougnaoui not wear the religious apparel, and in light of her refusal to comply, they were justified in dismissing her.
Having considered the Strasbourg case law and the European legislation, AG Sharpston has taken the view that Ms Bougnaoui’s dismissal amounted to direct discrimination on the grounds of religion or belief. Could Micropole then turn to Article 4(1) to defend this dismissal?
AG Sharpston noted that recital 23 of the Directive states that the derogation should apply only ‘in very limited circumstances’. The EU case law provides that this must be interpreted strictly, i.e. only where it is absolutely necessary in order to undertake the professional activity in question. AG Sharpston cites two examples to demonstrate. First, a male Sikh employee, in a post requiring protective headgear, may not be able to insist on wearing his turban. Secondly, a female Muslim working with dangerous factory machinery cannot insist on wearing attire that would give rise to safety concerns. Beyond that, AG Sharpston found it hard to envisage any other scenarios where the requirement is absolutely necessary.
It follows, in AG Sharpston’s view, that the mere commercial interests of a business, its profit margins or customer satisfaction will not suffice. Micropole should not succeed in justifying their actions under Article 4(1). To interpret the Article as Micropole have sought to do would risk ‘normalising’ the derogation which is to be applied in only the most limited of circumstances.
AG Sharpston then went on to consider, in case she was wrong on direct discrimination, whether Micropole’s actions amounted to indirect discrimination. If so, could they be objectively justified as a legitimate aim and the means of achieving that aim are appropriate and necessary (under Article 2(2)(b))?
Here, AG Sharpston considered, it could be argued that the interest of the employer’s business could constitute a legitimate aim. The freedom to carry on business is not, however, an absolute right. It is subject to limitations imposed by the right to equal treatment. These two protected rights – the right to carry on a business and the right to manifest one’s religion – are potentially in conflict, as was the case here. It is then a question of proportionality.
There are many factors which will affect whether a requirement is proportionate. AG Sharpston takes the view that, in the vast majority of cases, a proportionate accommodation can be found. As a last resort, however, the business interest in generating maximum profit should give way to the employee’s right to manifest her religious belief. Micropole’s discrimination in this case could, therefore, not be justified as a proportionate aim
AG Sharpston ended her Opinion by drawing attention to the ‘insidiousness of the argument, “but 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 of the “prohibited factors”, such as religion, it seems to me particularly dangerous to excuse the employer from compliance with an equal treatment requirement in order to pander to that prejudice.’
The ECJ is due to hear this matter along with Achbita and anor v G4S Secure Solutions NV towards the end of the year.
Author: Rebecca Tuck, Old Square Chambers. Rebecca’s main area of practice is employment and discrimination law. She is recommended for employment law in Chambers and Partners.