Religious dress in the workplace: Achbita and Bougnaoui reconsidered

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 discrimination if it is a proportionate means to a legitimate aim. That is, however, not the same as the test to be applied if there is a difference that directly depends on a protected characteristic, in which case a finding of discrimination can be avoided only if in the particular circumstances of the case this was specifically related to the job’s requirements.

One should start with Achbita. Ms Achbita worked for G4S as a receptionist. G4S had a long-standing unwritten policy that employees should not, while on duty, wear symbols manifesting religious or political conviction. When Ms Achbita told the management that she intended to wear the headscarf, she was told this was unacceptable. At about the same time the works council formally amended the regulations, expressly outlawing ‘any visible signs of... political, philosophical or religious beliefs’. In due course Ms Achbita was dismissed.

The regulation in question was, formally speaking, neutral. The CJEU nevertheless said that it was ‘not inconceivable’ that it might affect those of certain religions or beliefs more seriously than others, so as to be capable of constituting indirect discrimination. In a trenchant comment on the European Law Blog, Gareth Davies has pointed out that this might politely be described as an understatement. It is in fact quite obvious that such a prohibition is not truly neutral, because religions vary so dramatically in the extent to which they make some ‘external manifestation’ obligatory or common.

But assuming that it had a different impact on different religious groups, the requirement would still be permissible if it could be ‘objectively justified’ based on a ‘legitimate aim’. One might have expected the CJEU to leave that assessment to the national court. But in fact it was forthright: ‘An employer’s wish to project an image of neutrality towards customers ... is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers.’ In practice, employers’ desire to protect a ‘neutral image’ can be given priority. One might ask whether this is really neutral at all: ‘neutral’ here means, really, ‘secular’. In practical terms, the court takes a clear line which privileges the secular workplace.

In contrast, in Bougnaoui, the claimant was a software engineer who had been sacked by her employer because customers had complained that she wore a headscarf. On a narrow point, the CJEU found in her favour: it found that it could not be an ‘occupational requirement’ that customers did not wish to be served by people who manifest a particular religion.

That must obviously be right. If an employer could say ‘I am discriminating because my customers wish me to do so’, that would rob non-discrimination law of much of its force. But, as the CJEU expressly pointed out, a general policy (as in Achbita) prohibiting any external manifestation of religious belief would pass muster, even though a specific decision directed at a particular complaint does not. But is that really a useful difference? A supposed concern with ‘neutrality’ may often be motivated by customer concerns not with religious affiliation as such, but with particular affiliations. In practical terms, the ‘neutral’ policy may pander to prejudice just as surely as something more overt and specific. The effect on employees is much the same.

If particular instances of customer prejudice are properly regarded as irrelevant, then why should general expressions of customer prejudice be any more worthy of protection? Permitting appeasing customer preferences to be treated as a ‘legitimate aim’ makes it legitimate for the employer to do so at the expense of the employee’s manifestation of religious belief. Whatever pragmatic or principled arguments there might be in favour of such a secularist approach, it seems hard to reconcile it with a genuine commitment to preventing discrimination on grounds of religion.

If one aim of non-discrimination law is to permit religious minorities to express their convictions freely, limited only by what is strictly necessary, then the rule announced by the CJEU in Achbita may well need reconsideration. 

Paul Stanley QC is a barrister at Essex Court Chambers

@EssexCourtLaw

essexcourt.com