Brussels, 13/07/2016 (Agence Europe) - A company's ban on a Muslim employee wearing a headscarf when in contact with clients on the company's premises after one of these clients had complained, and the dismissal of this employee following her refusal to fall in line with this ban, should be considered as unlawful direct discrimination under the directive on equal treatment in employment and occupation (2000/78/EC).
This is the conclusion reached by Advocate General Eleanor Sharpston on Wednesday 13 July in a case (C-188/15) in which the Court of Justice of the EU (CJEU) was asked by the French Court of Cassation to rule on the appeal made by this employee, a design engineer, after she had been dismissed by her IT company employer for the reasons given.
The French Court of Cassation asked the CJEU whether banning the employee's Islamic headscarf from being worn when she provided IT consultancy services to clients could be regarded as a “genuine and determining occupational requirement” - a reason allowing derogation from the principle of non-discrimination on the basis of religion and belief that is provided for in the above-mentioned directive.
In her conclusions, Sharpston examined the possible derogations provided for in the directive, focusing on their consequences with regard to employment in the private sector, as the rules for the public sector vary considerably between the member states. Sharpston gave a negative response to the question asked by the French Court of Cassation.
In her opinion, the ban on the employee wearing her Islamic headscarf in these specific circumstances constitutes direct discrimination based on religion since firstly, the ban disregards the employee's freedom to respect her religious beliefs, and secondly it resulted in the employee's dismissal, which would not have been the case for another design engineer who had not shown their religious beliefs. Furthermore, Sharpston said that this ban does not respond to a “genuine and determining” occupational requirement which may derogate from the principle of non-discrimination. She also said the ban is disproportionate to the requirements of the employee's job, as wearing an Islamic headscarf does not encroach on her competence (as was stated in the employee's letter of dismissal), nor does is prevent her from performing her duties as a design engineer. The risk of financial damage for the employer as a result of losing clients due to their irritation at the headscarf cannot alone justify the above-mentioned discrimination, Sharpston stated.
Sharpston also ruled out the other possible grounds for derogation in this direct discrimination case (a ban on wearing religious attire in order to protect the individual rights and freedoms necessary for the functioning of a democratic society; or a derogation for occupational activities within churches or other organisations whose ethos is based on religion or belief).
As regards the possibility of indirect discrimination which could result in the employer sanctioning the employee for violation of an internal rule imposing a perfectly neutral dress code, Sharpston concluded that such a rule can be justified if it pursues a legitimate objective (for example, if it is in the interests of the employer's business) and if it is proportionate to this objective. However, in Sharpston's opinion, this is not the situation in this case where the employer's ban seems disproportionate. Nevertheless, it is now for the French Court of Cassation to rule on this point.
The verdict to be given by the CJEU on this case, along with another verdict it will give on a similar case in Belgium (C-157/15) (EUROPE 11562) involving a ban on the Islamic headscarf being worn on company premises, will probably form the basis of rulings by other national judges throughout the EU in this type of case. (Original version in French by Francesco Gariazzo)