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Is it discriminatory to ban Islamic headscarves at work?

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Ms Bougnaoui, a Muslim woman employed as a design engineer for Micropole SA in Paris, was dismissed from her job because she refused to comply with an instruction not to wear a headscarf.

Ms Bougnauoi was told at the beginning of her employment that due to her client facing role, she may not always be able to wear a hijab. When a customer complained, she was asked by the Company not to wear it at future client meetings. However, she refused to comply with the Company’s instructions and was therefore dismissed.

Ms Bougnaoui claimed religious discrimination in a French Labour Tribunal but was unsuccessful and her initial appeal was dismissed on the basis that it was a “genuine and serious reason”.

On appeal, the case was referred to the European Court of Justice (ECJ) to decide whether the Company’s policy which required Ms Bougnaoui to refrain from wearing her headscarf while at work was a “genuine and determining occupational requirement”. Last week, an Advocate General (AG) gave opinion that Ms Bougnaoui had been directly discriminated against.

Under Article 4(1) of the Equal Treatment Framework Directive, direct discrimination can be justified where there is a “genuine and determining occupational requirement” which is legitimate and proportionate.

The AG found that the headscarf did not affect Ms Bougnaoui’s work and observed that whilst it may be legitimate for employers to apply certain restrictions on dress, a blanket ban could not be proportionate unless there were serious health and safety concerns.

Unusually, the AG considered the Bougnaoui case to be one of direct discrimination, whereas, most cases involving dress codes relate to indirect discrimination. This is because dress codes are usually applied to everyone equally but have a disproportionate impact on certain groups whose religious beliefs require them to wear items which are not permitted under the code.

This decision contrasts previous cases on dress codes and religious freedom. In particular, in the very recent and similar case of Achbita and another v G4S Secure Solutions NV, adifferent AG determined that a headscarf ban was not direct discrimination and that even if it was, it could be justified by the employer’s legitimate, commercial objective of religious neutrality.

Employers who have queries regarding the above should contact Sally Morris or on 01905 734032.