March 21, 2017, by Rossella Pulvirenti
The CJEU’s approach to Prohibiting Islamic Headscarves in the Workplace
Mauro Pucheta, PhD candidate at the University of Nottingham School of Law
Rossella Pulvirenti, PhD candidate at the University of Nottingham School of Law
On 14 March 2017, the Grand Chamber of the Court of Justice of the European Union (CJEU) issued two landmark rulings on the use of headscarves in the workplace. The cases of Samira Achbita (available here) and Asma Bougnaoui (available here) were much-awaited decisions, as they were the first judgments of the CJEU regarding discrimination based on religion or belief under Directive 2000/78 (Employment Framework Directive).
Background to the cases
The first case involved Ms Achbita, of Muslim faith, employed as a receptionist by G4S. At the time of Ms Achbita’s recruitment, there was an unwritten policy in the company that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace. After three years of employment, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during her shifts at work. Although there was no explicit client complaint following Ms Achbita’s decision, the G4S works council approved an amendment to the workplace regulations according to which employees were prohibited from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs in the workplace. Ms Achbita continued wearing the Islamic headscarf in the workplace and consequently was dismissed. The Belgian Court of Cassation asked the CJEU whether the employer’s neutrality policy amounted to direct discrimination.
The second case relates to Ms Bougnaoui, employed by Micropole, which had a neutrality policy according to which employees should not wear the hijab when they were in contact with clients. Allegedly, she had been informed of this policy prior to her recruitment. Following a customer’s complaint, Micropole asked her not to wear the headscarf in the future, and despite her being informed of the need to respect the neutrality policy, she persisted in the manifestation of her views. She was subsequently dismissed. The French Court of Cassation asked the CJEU whether the ‘neutrality requirement’ could amount to an occupational requirement (Art. 4(1) of the Employment Equality Directive) due to the nature of the job, or the context in which it was carried out.
In both cases, the main legal issue was related to the extent of both the freedom and prohibition of religious symbols in the workplace. The CJEU concluded that the decision of both companies to restrict the employees’ right to manifest their religion was lawful because it protected the legitimate right to promote an image of neutrality of those companies. Despite this, the CJEU acknowledged that such a prohibition may constitute indirect discrimination because individuals adhering to a particular religion or belief might be put at a particular disadvantage. Nevertheless, the CJEU concluded that such indirect discrimination may be objectively justified by the legitimate aim of a policy of political, philosophical and religious neutrality towards customers. Furthermore, in Bougnaoui, the CJEU clearly stated that the desire of a customer not to receive the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered as an occupational requirement for any restrictions on religion symbols.
A Fundamental Rights Conflict
In both cases, there is little doubt that there was a fundamental rights conflict. The CJEU first considered freedom of religion, which has been recognised by Article 10 of the EU Charter of Fundamental Rights (Charter) and the 2000/78 Directive. These provisions protect, in principle, wearing a headscarf in the workplace. The CJEU also highlighted that wearing clothing for religious reasons is an aspect of religious belief. On the other hand, the CJEU recognised that freedom to conduct a business, enshrined in Article 16 of the Charter, authorised the implementation of a neutrality policy in a company.
Although we agree with the recognition of the two fundamental rights at stake, there are two main problematic aspects. Firstly, the question arises whether an employee wearing a religious symbol (i.e. a headscarf) not for religious purposes would be protected by this freedom. Specifically, if an employee wears a headscarf for fashion purposes, would this be a breach of the company’s neutrality policy? Secondly, the CJEU omitted to consider other fundamental rights. Article 31 of the Charter, which protects the right of every worker to have working conditions that respect, inter alia, dignity, could have been invoked (see Steijns). The question arises whether the company’s neutrality policy could affect employees’ right to manifest their religion, and (consequently) their dignity as well. However, the CJEU decided to remain silent on this particular provision.
The Conditional Nature of a Neutrality Policy in the Workplace
In both companies the ban was a general one. Therefore, the claim of direct discrimination was dismissed with a note from the CJEU recognising that a neutrality policy could constitute an indirect discrimination. However, the CJEU recognised that such discrimination could be objectively justified if there was a legitimate aim and the means used were appropriate and necessary. In this particular case, a ban may thus be grounded in an organisation’s image towards customers. The CJEU did recognise the lawfulness of a neutrality policy. Nevertheless, the CJEU established some requirements: the policy must be pursued in a consistent and systematic manner. It also determined that it should be undifferentiated – not focusing on a particular religion or belief – in respect of members of its staff who come into contact with its customers. However, the CJEU stated that it is to the referring court to determine whether a change of post that does not require customer contact could have been an alternative to dismissal.
The CJEU’s decision sheds some light on the conditions that a company’s neutrality policy must comply with in order to be lawful. Although one could have welcomed more detailed guidelines, given the unique nature of the EU legal system, and considering the different realities across the 27/8 Member States, national courts will play a major role in shaping how these requirements play out in labour relationships.
A Clash with the European Court of Human Rights
In both the Achbita and Bougnaoui cases, the CJEU referred to Article 9 of the European Convention of Human Rights (ECHR), which guarantees ‘that everyone has the right to freedom of thought, conscience and religion’. It also invoked case-law of the European Court of Human Rights (ECtHR), in particular, the case of Eweida. Here, the UK was found in breach of Article 9 ECHR because of the restriction of Ms Eweida’s right to wear a religious necklace over her clothes whilst working for British Airways.
The CJEU rightly relied on the ECHR pointing out that the right guaranteed in Article 10(1) of the Charter corresponded to the right guaranteed in Article 9 of the ECHR. It considered as well the Eweida case as a basis for its decisions. However, the CJEU seems not to have followed the approach of the ECtHR. The latter balanced the freedom of religion (Article 9 ECHR) and the employer’s wish to project a certain corporate image, concluding that the national authorities gave undue weight to this legitimate aim, as the manifestation did not have any negative impact on British Airways’ brand. Adopting a different perspective, and unlike the ECtHR, the CJEU had to deal with two conflicting fundamental rights expressly protected in the Charter, which can arguably be the reason for a different outcome. It is also worth recalling that whilst the EU legal order contains limited provisions that fight against discrimination on the basis of religion, the ECHR’s scope on freedom of religion seems to be much wider (see Martí). Therefore, the slight difference in approaches are not necessarily unjustified.
We consider that the CJEU has not established a ‘workplace headscarf ban’, but has merely determined that a neutrality policy is legally acceptable. Furthermore, even though the CJEU has given some hints towards the requirements needed in order to have a lawful neutrality policy in the workplace, national courts are going to play an important role in determining whether a company’s policy complies with the CJEU’s conditions.
It appears the CJEU failed to understand why Muslim women actually wear headscarf or hijab and the importance that Islam puts towards such act. In every religion, there are obligations which are binding upon them and those which they do voluntarily and have no religious negative consequences, such as amounting to sin and consequently resulting in punishment in the afterlife. An example is wearing religious necklace as was the case in Eweida case. I do not know of any religion which actually “require” you to wear a necklace at all times in this life, though I could be wrong. Some acts done by people who believe in certain religions are done simply for their emotional well-being or peace of mind or as a way to repent for their past sins, such as wearing a necklace shaped like a cross (for Christians) helps the person feel closer to God and perhaps safe from the influence of Satan. On the other hand, some acts such as not eating pork (for Muslims and certain other religions) or cow (for Hindus) are believed to be binding obligations (at least by those who follow them piously) which, if breached, is believed to have religious consequences or sanctions in the afterlife by the people believing in them. Here, we see the ECtHR considering a policy prohibiting wearing of religious necklace (lets say it is non-binding or soft obligation) to be unlawful whereas the CJEU ruled that a policy which had the effect of prohibiting wearing of headscarf/hijab (a binding religious obligation for all Muslim women) as lawful. In my opinion, the importance which a person gives to a particular religious act AND whether that act is believed to be a binding obligation under the religion of that person should be considered in such type of cases.