A French design engineer who was sacked from her job for not removing her headscarf was a victim of discrimination, the European Court of Justice heard.
After being sacked from her job, Asma Bougnaoui went to a labour tribunal, who dismissed her claim for discrimination based on her religious views and found that the dismissal was based on a “genuine and serious reason”. This decision was upheld on appeal, but was then moved to the Court of Justice of the European Union (CJEU) for an initial ruling.
The case centres on IT consultancy Micropole and their policy that requires an employee to remove her headscarf or hijab when meeting clients. The ruling will determine whether this was a “genuine and determining occupational requirement”, under Article 4(1) of the Equal Treatment Directive (2000/78/EC).
The hijab covers the head but not the face.
Ms Bougnaoui’s job involved visiting clients at their own business premises. But a client complained that her headscarf had caused embarrassment to their staff. Micropole asked Ms Bougnaoui to remove her headscarf the next time she was due to visit the client, but she refused and was sacked in 2009.
Direct discrimination
Advocate General Eleanor Sharpston said there was “nothing to suggest that Ms Bougnaoui was unable to perform her duties as a design engineer because she wore an Islamic headscarf”. In fact Micropole had itself stressed that she was very competent at her job.
Ms Sharpston disputed claims that banning staff from wearing religious clothing when in contact with clients could be necessary. She added that Ms Bougnaoui’s sacking was actually, “direct discrimination” and that company policies that enforce a completely neutral dress code would only be necessary, “if it pursues a legitimate aim and is proportionate”.
The Advocate General said that discrimination would only be lawful if based on a genuine “occupational requirement” such as health and safety for example.
This decision is in stark contrast to the earlier conclusion of Advocate General Kokott in Achbita v G4S Secure Solutions NV. In this case it was determined that a ban on wearing a headscarf can indeed be justified by an employer’s general policy of neutrality and where the ban applied consistently to all obvious signs of religious or philosophical beliefs.
This ruling in this case is only advisory and is not binding on the court. Judges will formally deliver the final, binding judgement at a later date.
