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.