The CJEU Grand Chamber has handed down preliminary rulings in the Belgian and French hijab cases.
The Court has leaned towards the employer in Achbita but towards the employee in Bougnaoui – reflecting the opinions of the two Advocates General.
G4S Secure Solutions NV is a Belgian company that provides security, guarding and reception services. Samira Achbita, a Muslim, worked as a receptionist for G4S and after three years she insisted that she should be allowed to wear a hijab at work. G4S prohibits employees from wearing any visible religious, political or philosophical symbols at work and, consequently, dismissed her. The Belgian Cour de Cassation/Hof van Cassatie, before which her wrongful dismissal appeal is pending, asked the CJEU for a preliminary ruling clarifying the prohibition under EU law of discrimination on the grounds of religion or belief, as follows:
“Should Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 [establishing a general framework for equal treatment in employment and occupation] be interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?”
In the opinion of AG Kokott, the facts had not revealed any direct discrimination on the ground of religion, always provided that the ban had been based on a general company rule prohibiting visible political, philosophical and religious symbols rather than on religious stereotypes or prejudices. The ban might constitute indirect religious discrimination but it could be justified if it enforced the employer’s legitimate policy of religious and ideological neutrality. She concluded as follows:
“(1) The fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion within the meaning of Article 2(2)(a) of Directive 2000/78/EC if that ban is founded on a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against one or more particular religions or against religious beliefs in general. That ban may, however, constitute indirect discrimination based on religion under Article 2(2)(b) of that directive.
(2) Such discrimination may be justified in order to enforce a policy of religious and ideological neutrality pursued by the employer in the company concerned, in so far as the principle of proportionality is observed in that regard.
In that connection, the following factors, in particular, must be taken into account:
- the size and conspicuousness of the religious symbol,
- the nature of the employee’s activity,
- the context in which she has to perform that activity, and
- the national identity of the Member State concerned.” [141: emphasis added]
In her view, it was for the Belgian Court to strike a fair balance between the conflicting interests.
Asma Bougnaoui was a design engineer with the French information technology company Micropole SA. She wore a hijab at work but was told by her employer to remove it while visiting a client after the client’s staff had complained about her appearance – and when she refused to do so she was sacked. In the course of the subsequent proceedings for unfair dismissal, the French Cour de Cassation referred the following question to the CJEU:
“Must Article 4(1) of [Directive 2000/78] be interpreted as meaning that the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out?”
AG Sharpston took a rather different line in her opinion from that taken by AG Kokott in Achbita – though it should be noted that the questions asked by the two courts were slightly different and referred to different Articles of Directive 2000/78. She concluded that the CJEU should reply to the Cour de Cassation as follows:
“(1) A rule laid down in the workplace regulations of an undertaking which prohibits employees of the undertaking from wearing religious signs or apparel when in contact with customers of the business involves direct discrimination on grounds of religion or belief, to which neither Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation nor any of the other derogations from the prohibition of direct discrimination on grounds of religion or belief which that directive lays down applies. That is a fortiori the case when the rule in question applies to the wearing of the Islamic headscarf alone.
(2) Where there is indirect discrimination on grounds of religion or belief, Article 2(2)(b)(i) of Directive 2000/78 should be construed so as to recognise that the interests of the employer’s business will constitute a legitimate aim for the purposes of that provision. Such discrimination is nevertheless justified only if it is proportionate to that aim.” [135: emphasis added]
The CJEU judgments
In Achbita & Anor v G4S Secure Solutions NV  EUECJ C-157/15, the Grand Chamber of the CJEU held that G4S’s internal rule referred to wearing visible signs of political, philosophical or religious beliefs and therefore covered any manifestation of such beliefs without distinction. The rule treated all employees in the same way by requiring them, generally and without any differentiation, to dress neutrally. It was not evident from the material available to the Court that that internal rule had been applied differently to Ms Achbita as compared to other G4S employees; accordingly, the rule did not introduce a difference of treatment directly based on religion or belief for the purposes of the Directive.
However, the national court might conclude that the internal rule introduced a difference of treatment that was indirectly based on religion or belief if it were established that the apparently neutral obligation resulted, in fact, in persons of a particular religion or belief being put at a particular disadvantage. Such a difference of treatment would not amount to indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary – which was a matter for the Belgian Court to determine on the facts. The Grand Chamber ruled as follows
“Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.
By contrast, such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain” .
In Bougnaoui and ADDH  EUECJ C-188/15, the Grand Chamber noted that it was not clear from the order for reference whether the question from the Cour de Cassation related to a finding of a difference of treatment based directly or indirectly on religion or belief. It was therefore for the Cour de Cassation to ascertain whether Ms Bougnaoui’s dismissal had been based on non-compliance with an internal rule prohibiting the visible wearing of signs of political, philosophical or religious beliefs. If that were the case, it would be for that court to determine whether the conditions set out in the judgment in G4S Secure Solutions were satisfied: whether the difference of treatment arising from an apparently neutral internal rule that was likely to result, in fact, in certain persons being put at a particular disadvantage, was objectively justified by the pursuit of a policy of neutrality, and whether it was appropriate and necessary.
If, however, Ms Bougnaoui’s dismissal was not based on the existence of such an internal rule, it would be necessary to determine whether an employer’s willingness to take account of a customer’s wish no longer to have the employer’s services provided by a worker wearing a hijab was justified for the purposes of Article 4(1) of the Directive – under which Member States may provide that a difference of treatment prohibited by the Directive does not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, the characteristic at issue constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
It was only in very limited circumstances that a characteristic related to religion could constitute a genuine and determining occupational requirement – a concept which referred to a requirement that was objectively dictated by the nature of the occupational activities concerned or of the context in which they were carried out and did not cover subjective considerations such as an employer’s willingness to take account of the particular wishes of a customer.
The Grand Chamber therefore ruled as follows:
“Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that 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” .