ECJ ruling on headscarves at work

  • By The Alchemist About Town
  • 06 Apr, 2017

Is it time to ditch the dress code or is it still justifiable?

I read a recent article in the CIPD Magazine People Management where the discussion centred around " Is it time to ditch the dress code?"  topic.

 This sounded particularly pertinent to me considering a recent court ruling where , according to the European Court of Justice ( ECJ), it was stated that, if an internal rule exists, it must be considered if the rule would constitute a direct or indirect discrimination . 

This was in relation to a Muslim engineer who was dismissed for wearing a headscarf at work: Asthma Bougnaoui, who worked for an IT consultancy in France, lost her job in June 2009 after refusing to remove her headscarf when meeting with clients. 

A French tribunal found that she had been unfairly dismissed and she was compensated. Her employer then took the case to the French Supreme Court, arguing her wearing a headscarf hampered its interactions with clients. The case was handed to the ECJ to determine whether a requirement not to wear a headscarf was a “genuine and determining occupational requirement “and therefore not discriminatory. In connection with the employment, Micropole SA ( the IT Company) specified that they fully respected the principle of freedom of opinion and of the individual's religious beliefs, but also specified that Asthma Bougnauoi was not allowed to wear a headscarf under any circumstances when interacting internally or externally with the customers of the company. When she  refused to remove her headscarf whilst visiting customers, despite being ordered to do so, she was dismissed. 

Advocate General Eleanor Sharpston had firstly advised that the company’s actions amounted to discrimination on the grounds of religion and belief. Her opinion came in advance of the full ECJ decision on the matter and created some understandable uncertainty.

The ECJ ruling  stated that the Directive that was alleged to have been violated ( Directive 2000/78/EC ) does not define the term "religion" and as such "religion" is to be interpreted with the board approach adopted in the European Convention on Human Rights and Charter of Fundamental Rights of the European Union as this was probably the intended approach for the Directive.

In summary workplace bans on the wearing of "any political, philosophical or religious sign" such as headscarves need not constitute direct discrimination.

However the ECJ also remarked that only in very limited circumstances can a characteristic regarding religion constitute a genuine and determining occupational requirement.
In practice the decision states that if an internal rule regarding a ban on wearing religious clothing does exist, it is not necessarily evidence of direct discrimination provided that the rule treats all the employees of the company equally by indiscriminately instructing that all employees wear neutral clothing. It is important to remember here that a mean of achieving a legitimate aim should be proportionate to what the aim is trying to achieve ( e.g. could neutral clotting for all affects disproportionately a specific group of people and therefore account to indirect discrimination? It is up to individual countries' courts to decide what would/could constitute indirect discrimination ).

The ECJ also ruled on a similar case, “Achbita and another v G4S Secure Solutions NV” where a Muslim receptionist in Belgium was told that wearing any religious symbols went against its policy on neutrality. Here refusal to work without her headscarf resulted in her dismissal. The ECJ here concluded that an internal rule does not constitute a difference of treatment directly on the grounds of religion or belief as they reasoned that the internal rule in this case treated all the employees equally as all employees were indiscriminately instructed to wear neutral clothing as opposed to such signs.

On the other hand, the ECJ did not directly dismiss either  that religion may constitute a "genuine and determining occupational requirement" and that a customer's opinion on whether the employees can wear religious headscarves is not sufficient per se.

There is such complexity around this topic that there is a very compelling argument that it would be easier not to impose any rules except very basic standards (leaving aside of course health and safety and hygiene reasons and regulations) and employers should ensure that they avoid dress codes that restricts an employee’s right to wear things associated with their religious beliefs if not strictly necessary.

Is your company up to date with the times? Or are you an employee in a company with a very restrictive dress code?

 Leave a comment and let me know your views, thank you.

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