Dress code banning Islamic headscarves
amounted to direct discrimination
An employee was required to remover
her Islamic headscarf when in contact
with clients.
One client complained that the
‘wearing of a veil had embarrassed a
number of its employees’.
She was then told ‘not to wear a veil’
on her next visit. She refused and was
summarily dismissed.
The Advocate General has held that a
company policy requiring an employee to
remove her Islamic headscarf when in
contact with clients constituted direct
discrimination on the ground of religion or
belief. Nicola Butterworth, Employment
Law expert with Howes Percival
comments.
“Dress codes have been making the
headlines over the past months following
a spate of challenges by employees.
Although the Advocate General’s opinion
is not binding, if accepted by the Court of
Justice it is likely to lead to a further
increase litigation in this area. To
minimise the risk of discrimination when
formulating dress code policies,
businesses should carefully consider the
requirements behind the policy and the
impact of the dress code on their
workforce.”
Dress codes specify what can and can’t
be worn in the workplace. When imposed
across the whole workforce, these policies
can have a disadvantageous effect on
certain groups of staff. Until now it has
generally been understood that dress
codes are more likely to give rise to issues
of indirect discrimination, which may be
objectively justified by employers, for
example for health and safety reasons. If
accepted, the Advocate General’s opinion
would reshape this view, meaning that
policies that ban religious apparel or
symbols would also amount to a form of
direct discrimination, to which employer’s
would have little or no defence. The
Advocate General’s opinion directly
conflicts with the recent Advocate
General’s opinion in Achbita v G4S
Secure Solutions NV, a case involving
similar facts (where a dress code which
required “ideological neutrality” was
applied). The Court of Justice is due to
give judgments on both cases at the end
of this year.
In Bougnaoui v Micropole SA, Ms
Bougnaoui, a Muslim woman, was
employed as an engineer by Micropole
SA, a French IT company. She wore an
Islamic headscarf which covered her head
but left her face exposed. At the outset of
her employment, she was informed by
Micropole that as she had a client-facing
role, she would not be able to wear the
headscarf at all times. Following a
complaint by one of Micropole’s clients,
that Ms Bougnaoui’s ‘wearing of a veil
had embarrassed a number of its
employees’, she was asked by her
employer whether she would comply with
its client’s request ‘not to wear a veil’ on
her next visit. Ms Bougnaoui refused and
was summarily dismissed by Micropole.
Micropole believed that in failing to agree
to comply with its rules regarding the
wearing of religious head coverings when
in contact with customers, it was
untenable for Ms Micropole to continue to
carry out her functions on behalf of the
company.
Ms Bougnaoui challenged her dismissal
and claimed religious discrimination
before the French courts. On appeal, the
French Court of Cassation referred a
question to the ECJ asking whether on
assumption that Ms Bouganoui’s
treatment was discriminatory, it could be
justified as a genuine and determining
occupational requirement, by reason of
the particular occupational activities
concerned or of the context in which they
are carried out. In addressing this
question, the Advocate General observed
that Ms Bougnaoui was dismissed not on
grounds of her religion (i.e. that she was
a member of the Islamic faith) but on her
manifestation of that religion (i.e. that she
wore the Islamic headscarf). In the
Advocate General’s view the prohibition
laid down by the Equal Treatment
Framework Directive extends not only to
the religion or belief of an employee, but
also to manifestations of that religion or
belief. Ms Bougnaoui was treated less
favourably on grounds of her religion
since a design engineer working at
Micropole who had not chosen to
manifest their religious belief by wearing
particular apparel would not have been
dismissed.
Having decided that Ms Bougnaoui’s
dismissal amounted to direct
discrimination because of religion or
belief, the Advocate General could not
find any grounds to support Micropole’s
position that her dismissal was justified.
There was no evidence that Ms Bougnaoui
was in any way unable to perform her
duties as an engineer because she wore
the Islamic headscarf. As such, the
requirement by Micropole for Ms
Bougnaoui not to wear a headscarf when
in contact with its customers could not be
a ‘genuine and determining occupational
requirement’.

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