Editorial of November 2016

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by Alessandra Silveira, Editor
and Sophie Perez Fernandes, Junior Editor

Unveiling the meaning of freedom of religion in the workplace

Two preliminary proceedings are currently pending before the Court of Justice of the European Union (ECJ) concerning the question of religious expression at work. In both cases, Achbita (C-157/15), originated in Belgium, and Bougnaoui (C-188/15), originated in France, the ECJ is called upon to rule on a highly sensitive issue – the wearing of Islamic headscarves (and not the full veil) in the workplace. The questions are fundamentally the following: 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?

It is the first time that the ECJ is called upon to address such questions. In the meantime, both AG Kokott (in Achbita) and AG Sharpston (in Bougnaoui) have rendered their opinions. The issues raised in both cases require 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]. Both Advocates General concluded that a ban, such as those at issue in the main proceedings, could be regarded as indirect discrimination: the rules in question, although apparently neutral, were likely to put individuals of certain religions or beliefs at a particular disadvantage by comparison with other employees. Such discrimination may nevertheless be permitted if i) objectively justified by a legitimate aim, such as the interest of the employer’s business to enforce a policy of religious and ideological neutrality, and ii) so far as the principle of proportionality is observed (Article 2/2/b of Directive 2000/78).

However, the Advocates General disagree as to whether such a ban could be found as constituting direct discrimination (Article 2/2/a of Directive 2000/78). According to AG Kokott, a ban such as that at issue in Achbita could not be regarded as direct discrimination based on religion: a company rule prohibiting the wearing of visible signs of religious, political or philosophical beliefs, only creates a difference of treatment between employees who wish to give active expression to a particular belief and their colleagues who do not feel the same need. Thus, Ms Achbita had not been treated less favourably than another person on account of religion directly and specifically. On the contrary, AG Sharpston firstly concluded that Ms Bougnaoui’s dismissal amounted to direct discrimination against her on the basis of her religion as the right to manifest one’s religion is to be understood as an intrinsic part of the right to freedom of religion enshrined in both Article 9 of the European Convention of Human Rights (ECHR) and Article 10 of the Charter of Fundamental Rights of the European Union (CFREU). The distinction between direct and indirect discrimination is relevant as their possible justifications are different. In her analysis, AG Sharpston concluded that neither Article 4(1) of Directive 2000/78, nor any of the other derogations from the prohibition of direct discrimination on grounds of religion which that directive lays down, applied.

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