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  • 31 May and 13 July 2016: wearing the Islamic headscarf in a private company — very different conclusions in two cases brought before the ECJ

In 2015, the Belgian and French courts of cassation each referred a question to the Court of Justice of the European Union (ECJ) for a preliminary ruling in two separate cases. Both dealt with the dismissal of an employee who refused to remove her Islamic veil, and the Advocates-General presented conclusions which, while separated by only a few weeks’ time, differed quite widely. They are not binding on the Court of Justice, which will subsequently rule on the two cases; this will be its first decision on this subject.

Conclusions of the Advocate General Ms Juliane Kokott presented on 31 May 2016, Case C-157/15.

Ms Achbita has been employed by G4S as a receptionist since February 2003. In April 2006, she made it known that, for religious reasons, she intended to wear a headscarf during working hours from then on. On 12 June 2006, due to her persistent resolution to wear the Islamic headscarf, Ms Achbita was dismissed as per the company’s employment regulations, which state that “it is forbidden for workers to wear visible signs of their political, philosophical or religious beliefs in the workplace or to carry out any and all related rites resulting from them”.

Ms Achbita challenged her dismissal before the Belgian courts. Referred to on the matter, the Belgian Court of Cassation addressed a preliminary question to the ECJ, asking if Article 2 paragraph 2 sub-section a) of the Directive 2000/78/EC of 27 November 2000 must “be interpreted to mean that the prohibition of wearing a headscarf as a Muslim in the workplace does not constitute direct discrimination when the rule in force at the employer’s organisation prohibits all workers from wearing external signs of political, philosophical or religious beliefs in the workplace”.

Advocate-General Juliane Kokott deemed that “a ban such as that imposed by G4S can be considered an essential and decisive professional requirement within the meaning of Article 4 paragraph 1 of Directive 2000/78’ (pt. 84) and that it ‘does not harm the legitimate interests of the workers concerned and must therefore be considered proportionate” (pt. 126).

The General Counsel concluded that “the prohibition on a Muslim worker wearing an Islamic headscarf at work does not constitute direct discrimination on the grounds of religion within the meaning of Article 2 paragraph 2 sub-section a) of Directive 2000/78/EC, if this prohibition is based on a general company regulation prohibiting political, philosophical and religious signs visible in the workplace and is not based on stereotypes or prejudices relating to one or more specific religions or religious beliefs in general” (pt. 141).

Conclusions of the Advocate General Ms Eleanor Sharpston presented on 13 July 2016, Case C-188/15.

Employed since 15 July 2008 as a design engineer by Micropole S.A., a consulting company, Mrs Bougnaoui was dismissed by letter dated 22 June 2009. The termination of the employment contract was justified by the young woman’s refusal to remove her headscarf, which, in the view of Micropole S.A., made it impossible for her to continue providing services at customer sites. In fact, after Mrs Bougnaoui worked at his site one day, a customer reported that her wearing the veil had been a problem for a number of his employees and asked that there be “no veil next time”.

Ms Bougnaoui contested her dismissal before the French courts. Referred to on the matter, the French Court of Cassation referred a preliminary question to the CJEU, asking whether a client’s desire to no longer see IT services provided by an employee wearing an Islamic headscarf can be considered a “critical and decisive professional requirement” and thus escape the principle of non-discrimination based on religion or belief, as provided for in Article 4 paragraph 1 of the Law. Directive 2000/78/EC of 27 November 2000.

Advocate-General Eleanor Sharpston deemed that this derogation provided for in the directive was to be interpreted strictly and could not apply in this instance. She judged that Mrs Bougnaoui ‘had been treated less favourably, on the basis of her religion, than another person would have been treated in a comparable situation’ (pt. 88). Furthermore, ‘nothing in the referral order or other information available to the Court suggests that wearing an Islamic headscarf in any way prevented Mrs Bougnaoui from performing her duties as a consulting engineer’ (pt. 102).

The General Counsel concluded that ‘a company’s employment regulations that prohibit employees of this company from wearing religious signs or clothing when they are in contact with the company’s customers results in direct discrimination on the grounds of religion or belief […]’ (pt. 135). Such discrimination can only be justified if it is proportionate to the pursuit of a legitimate objective, such as for example the commercial interest of the employer. The Advocate-General noted, however, that it is unlikely that the ban imposed by Micropole would be considered proportionate, even if it is the national jurisdiction that would have to decide definitively on this point (pt. 132).

D 18 August 2016    AFrançoise Curtit

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