Court of Justice of European Union Rules Employers Can Ban Headscarf in Workplace

• 17/03/2017
• Articles

On 14 March 2017, the Court of Justice of the European Union (“ECJ”) handed down a judgment in the cases of two women, in France and Belgium respectively, who had been dismissed for refusing to remove their headscarf.

Belgian Case

The Belgian case (Case C-157/15, G4S Secure Solutions) involved the dismissal of a receptionist by G4S, a private firm that provides reception services for customers in both the public and private sectors. After a couple of years of employment, the employee had informed her employer that she intended to wear an Islamic headscarf during working hours. In the absence of any written inhouse rule, the G4S works council then approved an amendment to the work rules, prohibiting any visible signs of political, philosophical or religious beliefs and any observance of such beliefs. Due to the continuing insistence of the employee on wearing the Islamic headscarf at work, the company decided to dismiss the employee who challenged her dismissal before the Belgian courts.

The Belgian Supreme Court (Hof van Cassatie/Cour de Cassation), before which the matter had been brought, asked the ECJ for a ruling on the interpretation of Directive 2000/78/EC establishing a framework for equal treatment in employment and occupation (the “Directive”). In essence, it wished to know whether the prohibition on wearing an Islamic headscarf which arises from an internal rule of a private firm, constitutes a form of direct discrimination.

According to the ECJ, an employer’s desire to project an image of neutrality towards both its public and private sector customers is legitimate, notably where the only employees involved are those who come into contact with customers. In addition, the ban on the visible wearing of signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that this policy is genuinely pursued in a consistent and systematic manner.

As the prohibition only covers G4S employees who interact with customers, the ECJ reasoned that the prohibition is necessary for the purpose of achieving the legitimate aim pursued. The ECJ therefore concluded that the prohibition on wearing an Islamic headscarf which arises from an internal rule of a private firm does not constitute a form of direct discrimination based on religion or belief within the meaning of the Directive.

French Case

In the French case (Case C-188/15, Bougnaoui and ADDH), a design engineer who had objected to taking off her headscarf was dismissed by an IT consultancy firm, Micropole, after the firm had received a complaint from a customer that the customer’s staff had been embarrassed by her headscarf while she was working on their premises. The employee challenged her dismissal before the French courts.

The matter was brought before the French Supreme Court (Cour de Cassation) which asked the ECJ whether an employer’s willingness to take account of a customer’s wish no longer to have that employer’s services provided by an employee wearing an Islamic headscarf, may be considered a ‘genuine and determining occupational requirement’ within the meaning of the Directive. The ECJ held that the preference of a single customer does not amount to a “genuine and determining occupational requirement” and does not suffice to justify a dismissal.

The above judgments would seem to pave the way for employers introducing a neutrality policy towards both public and private sector customers. The ban may only be imposed on employees interacting with customers and cannot, as in the French case, be based on the complaint of a single customer. A written policy of neutrality must in any event be applied equally to all employees. In practice, such a policy should therefore ban different religious insignia such as the headscarf, crucifixes, skullcaps and turbans. Finally, the employer must always ascertain whether it is possible to assign the employee concerned to another post not involving visual contact with customers, before dismissing an employee who refuses to take off her headscarf.