Readers will remember our recent Insight,
Freedom of religion v Freedom to conduct a business, where we
outlined the opinion of Advocate General ("AG") Kokott
who said that a decision taken by Belgian security company G4S to
ban the wearing of headscarves in the workplace could
not amount to direct
discrimination. We now have the opinion of AG
Sharpston in the French case of Bougnaoui v Micropole SA, a case
which has similar facts to the G4S case.
In direct contrast to AG Kokott, AG Sharpston has opined that it
is unlawful to ban a Muslim employee from
wearing her Islamic headscarf (hijab) when in contact with
Micropole SA employed Ms Bougnaoui (Ms B), a practising Muslim
who wore a hijab, as a design engineer. Ms B wore her hijab (which
covered her head but left her face exposed) at work and when
visiting clients. A client complained that her wearing a hijab had
embarrassed a number of its employees and requested that there
should be "no veil next time". Micropole SA asked Ms B
not to wear her hijab when visiting clients, but she refused to
comply. She was subsequently dismissed and raised a claim for
religious discrimination in the French Labour Tribunal. She
was unsuccessful and appealed the decision, which was also
On further appeal, the Court of Cassation referred the matter to
the Court of Justice of the European Union (CJEU) for a preliminary
ruling on whether Micropole's policy requiring an employee to
remove her hijab when in contact with clients was a "genuine
and determining occupational requirement" under Article 4(1)
of the Equal Treatment Directive. Article 4(1) provides that a
difference of treatment based on a protected characteristic may be
lawful where, by reason of the nature of the particular
occupational activities concerned or the context in which they are
carried out, the characteristic constitutes a 'genuine and
determining occupational requirement'.
AG Sharpston firstly confirmed that Ms Bougnaoui's dismissal
was an act of direct discrimination as it was evident her dismissal
was linked to a prohibition on the wearing of religious apparel.
Whilst she may not have been dismissed because she was Muslim, the
prohibition on direct discrimination in the Directive extends to
manifestations of religion or belief (the fact that Ms Bougnaoui
wore a hijab). It was clear that she had been treated less
favourably on the ground of her religion than a comparator would
have been treated in a comparable situation. In respect of whether
the 'genuine occupational requirement' defence was
available, AG Sharpston said that discrimination would only be
lawful if based on an 'occupational requirement', which
must be 'genuine' and limited to matters which are
absolutely necessary in order to undertake the professional
activity in question. She said that, in her view, the derogation
must be interpreted strictly. For example, she indicated that might
include, for example, excluding a Sikh employee who insisted on
wearing a turban from working in a post which required the wearing
of protective headgear or a female Muslim employee working on
potentially dangerous factory machinery if her religious attire
could give rise to serious concerns on safety grounds. But, it
could not be used to justify a blanket exception for all the
activities that a given employee may potentially engage in. On the
facts of the case, AG Sharpston thought Micropole SA appeared to be
relying on its commercial interests. However, direct discrimination
cannot be justified on the ground of financial loss.
As we outlined in our previous Insight, AG Sharpston's
opinion is advisory only and does not bind the CJEU, which could
reach a different conclusion. However, the opinion is likely to be
influential going forward.
Contact our specialist Employment lawyers
MacRoberts' employment group is the longest established
specialist team in Scotland. We are known for using our practical
and effective approach to find solutions for our clients. In an
area of law that continually evolves, our team of accredited
specialists works to ensure our proactive advice is tailored for
our clients' strategic needs.
The material contained in this article is of the nature of
general comment only and does not give advice on any particular
matter. Recipients should not act on the basis of the information
in this e-update without taking appropriate professional advice
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In SSE Generation Limited v Hochtief Solutions AG and another decided on 21st December 2016, the Court of Session in Scotland considered a contractor's potential design liability under the NEC Form of Contract.
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