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Religious dress in the workplace: Achbita and Bougnaoui reconsidered

It is hard to reconcile the CJEU’s recent decisions on religious dress in the workplace with a genuine commitment to preventing discrimination, writes Paul Stanley QC

22 May 2017

How far should the law guarantee individuals the right to wear clothes that demonstrate their religious belief? That question has, for some years, been controversial. Recently the European Court of Justice decided two cases, both concerning Muslim women who had been dismissed because they wanted to wear a headscarf. In one (Case C-188/15, Bougnaoui) the employee scored a narrow victory; in the other (Case C-157/15, Achbita) a defeat. How should one explain the difference between the results? And which tells us more about the court’s approach?

The basic framework of analysis is the same in both cases. Directive 2000/78 prohibits direct or indirect discrimination on grounds of ‘religion or belief’. In principle this protects not just belief as such, but the manifestation of religious belief. In the case of indirect discrimination, a difference in treatment does not constitute di...

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