Labour & European Law Review Weekly Issue 519 10 May 2017
This week we look at religious discrimination in two cases considered recently by the Court of Justice of the European Union (CJEU). Both involved Muslim women who wished to wear a hijab to work, and in both cases, they were not allowed to do so by their employers and both were dismissed. Below are the facts in the case of Bougnaoui and anor v Micropole SA.
European law allows employers to discriminate where a person’s religion (among other characteristics) constitutes a “genuine … occupational requirement” for the job. In Bougnaoui and anor v Micropole SA, the CJEU held that this did not cover situations where an employer wanted to take account of the particular wishes of a customer.
Before starting an internship with Micropole, Ms Bougnaoui was told that it would be problematic if she wore an Islamic headscarf, only covering her head, when doing customer-facing work. However, she subsequently wore an Islamic headscarf at work during her internship and was offered a job on an indefinite contract when it came to an end.
Following a complaint from a customer about a year later, however, the company asked her not to wear the head scarf in future. Ms Bougnaoui objected and was subsequently dismissed by letter on 22 June 2009. She brought a claim of discrimination based on religion or belief.
Decision of lower courts
After her claim was rejected by the Labour Tribunal and the Court of Appeal, Ms Bougnaoui appealed to the French Court of Cassation which asked the CJEU to decide whether the request by Micropole’s customer not to have its information technology services provided by an employee wearing an Islamic headscarf could be considered a “genuine and determining occupational requirement” within the meaning of article 4(1) of the Equal Treatment Directive.
Article 4(1) states that it is not discrimination to allow for a difference in treatment based on a characteristic such as religion or belief if, “by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate”.
Decision of CJEU
As it was not clear whether the question was based on a finding of direct or indirect discrimination, the CJEU said the Court of Cassation first had to decide whether her dismissal was based on her refusal to comply with an internal rule prohibiting employees from wearing any visible sign of political, philosophical or religious beliefs. If that apparently neutral rule resulted in people who adhered to a particular religion or belief, such as Ms Bougnaoui, being put at a particular disadvantage, then it would be indirect discrimination unless the company could objectively justify it, as per the conditions set out in Achbita.
However, if her dismissal did not come about because she refused to abide by Micropole’s internal rule, then the court should consider whether the customer’s request was a “genuine and determining occupational requirement” within the meaning of article 4(1).
The CJEU pointed out however, that there were very limited circumstances in which a characteristic related to religion could constitute such a genuine and determining occupational requirement. In addition, as it had to be a requirement that was objectively dictated by the nature of the occupational activities concerned or of the context in which they were carried out, it could not cover a situation involving “subjective considerations”, such as an employer wanting to take account of the particular wishes of a customer.
As such, the answer to the question put by the Court of Cessation must be interpreted as meaning that an employer who wants to take account of the wishes of a customer not to have the services of that employer provided by a worker wearing an Islamic headscarf could not be considered a genuine and determining occupational requirement within the meaning of article 4(1).