by Sophie Perez Fernandes, Junior Editor

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Our editorial of November 2016 related to two preliminary references proceedings at the time pending before the Court of Justice of the European Union (ECJ) concerning the question of religious expression at work and, particularly, the highly sensitive issue of the wearing of Islamic headscarves (and not the full veil) in the workplace. The issues raised in both cases required the interpretation of the concept of ‘discrimination on the grounds of religion or belief’ within the meaning of the Anti-Discrimination Directive – the Directive 2000/78[i]. Let us recall the fundamental questions at issue: is a private employer allowed to prohibit a female employee of Muslim faith from wearing a headscarf in the workplace?; is the dismissal of an employee who refuses to comply with such rules restricting the wearing of religious symbols at work unlawful?

On 14 March 2016, the Grand Chamber delivered both the Achbita (C-157/15) and the Bougnaoui (C-188/15) judgments, two significant decisions in relation to discrimination in employment on grounds of religion. The facts at the origin of each case were slightly different.

In the first case, Ms Achbita started to work for G4S as a receptionist in 2003 and complied with the rule according to which workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace, an unwritten rule at the time. In 2006 Ms Achbita informed her employers that she intended, in future, to wear an Islamic headscarf at work and, in reply, was informed that such intention was contrary to G4S’s position of neutrality. Shortly afterwards, the above mentioned unwritten rule was written down: the workplace regulations thus stipulated that «employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs». Shortly after the amendment was approved, Ms Achbita was dismissed on account of her continuing insistence that she wished to wear the Islamic headscarf at work.

In the second case, Ms Bougnaoui was informed at a student recruitment fair by a representative of Micropole that the wearing of an Islamic headscarf might pose a problem when she was in contact with customers of the company. When Ms Bougnaoui began to work at Micropole in 2008 as an intern, she was initially wearing a bandana and subsequently an Islamic headscarf. Micropole nevertheless employed her at the end of her internship. Almost a year later, Ms Bougnaoui was dismissed. A customer of Micropole’s with whom Ms Bouganoui had worked informed her employers that her wearing the headscarf had upset some of their employees and requested that there should be «no veil next time». Despite the request of her employers, Ms Bouganoui refused to agree not to wear the headscarf in the future and was thus fired in 2009.

In response to the preliminary questions submitted by both the Belgium and the French Cour de Cassation, respectively, the ECJ first clarified the meaning of «religion» within the meaning of the Directive 2000/78. The ECJ considered the broad sense of the term «religion» enshrined in both Article 9 ECHR and Article 10 CFREU which includes «the freedom of persons to manifest their religion». Consequently, the ECJ held that «the EU legislature must be considered to have intended to take the same approach when adopting Directive 2000/78, and therefore the concept of ‘religion’ in Article 1 of that directive should be interpreted as covering both the forum internum, that is the fact of having a belief, and the forum externum, that is the manifestation of religious faith in public.»

The ECJ then addressed one of the controversial issues raised by both cases: qualifying bans of visible signs of beliefs in the workplace as direct or indirect discrimination on grounds of religion or belief. In their respective Opinions, both AG Kokott (in Achbita) and AG Sharpston (in Bougnaoui) concluded that bans such as those at issue in the main proceedings could be regarded as indirect discrimination; they, however, disagreed as to whether they could be found as constituting direct discrimination. In turn, the ECJ gave significant guidance on both accounts. The distinction between direct and indirect discrimination is relevant as their possible justifications are different: while directly discriminatory rules can only be justified by a «genuine and determining occupational requirement» [Article 4(1) of Directive 2000/78], indirectly discriminatory rules can only be accepted if they are objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary [Article 2(2)(b)(i) of Directive 2000/78].

In Achbita, the ECJ concluded that the internal rule at issue did not amount to direct discrimination on grounds of religion or belief. As it referred «to the wearing of visible signs of political, philosophical or religious beliefs» and covered «any manifestation of such beliefs without distinction», the rule treated «all workers of the undertaking in the same way by requiring them, in a general and undifferentiated way, inter alia, to dress neutrally, which precludes the wearing of such signs.»

The ECJ further provided guidance as to whether such a rule constituted indirect discrimination as the referring court might conclude that the apparently neutral obligation encompassed by it could result, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage. Under the Directive 2000/78, such a difference of treatment does not amount to indirect discrimination if it is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary.

As to the first condition, the ECJ was clear: «the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate.» The ECJ further stressed that (i) «[an] employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a business», as recognised in Article 16 CFREU, and that (ii) «[an] interpretation to the effect that the pursuit of that aim allows, within certain limits, a restriction to be imposed on the freedom of religion» is compatible with Article 9 ECHR as interpreted by the ECtHR (v. Eweida).

As to the proportionality test, the ECJ held that an internal rule such as that at issue in the main proceedings is, on the one hand, appropriate for the purpose of ensuring that a policy of neutrality is properly applied «provided that that policy is genuinely pursued in a consistent and systematic manner», and, on the other, necessary only if it is «limited to what is strictly necessary». In the Achbita case, that required for the referring court to ascertain «whether the prohibition on the visible wearing of any sign or clothing capable of being associated with a religious faith or a political or philosophical belief covers only G4S workers who interact with customers.»

In turn, regarding the Bougnaoui case, the ECJ stated that it was for the referring court to ascertain whether Ms Bougnaoui’s dismissal was based on non-compliance with a rule in force within Micropole prohibiting the wearing of any visible sign of political, philosophical or religious beliefs. That being the case, such a general ban might amount to an indirect discrimination and, here, the ECJ expressly referred to Achbita for the assessment of the legitimacy and the proportionality of such an internal rule – so that one decision cannot be considered separately from the other!

Being the case otherwise, that is, if Ms Bougnaoui’s dismissal was not based on the existence of an internal rule prohibiting the wearing of any visible sign of political, philosophical or religious beliefs, but on her wearing the Islamic headscarf, it was necessary to assess whether the willingness of an employer to take account of a customer’s wish no longer to have services provided by a worker who has been assigned to that customer and who wears an Islamic headscarf constitutes a «genuine and determining occupational requirement» within the meaning of Article 4(1) of Directive 2000/78. Here, the ECJ was particularly straightforward: «the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.» Taking into account, on the one hand, that «only in very limited circumstances» a characteristic related to religion may constitute a «genuine and determining occupational requirement», and, on the other, the wording of Article 4(1) of Directive 2000/78, according to which a characteristic related to religion may constitute such a requirement only «by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out», the ECJ concluded that the concept of a «genuine and determining occupational requirement» refers to a «requirement that is objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out» and cannot «cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer.»

Be for the clarification on the concept of «religion» relevant for the purpose of discrimination – and taking a broad approach on the issue –, be for the guidance given to national courts to assess the discriminatory nature of bans of visible signs of beliefs in the workplace – and taking a rather cautious (but, to some extent, structured) approach, as the ECJ relies on the final appreciation of the referring courts of the specific circumstances of each case –, the ECJ sought to draw a delicate balance in a highly sensitive and politically charged matter. Concerning the wearing of the Islamic headscarf in the workplace, the ECJ’s rulings in Achbita and Bougnaoui, without banning the bans, sought to limit such bans in a way that might make the assessment of their legitimacy and proportionality less likely under EU law.

[i] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303, 2.12.2000, p. 16-22.

Picture credits: Untitled  by Kashfi Halford.