An employer directly discriminated against a Muslim women who was dismissed for wearing a headscarf at work. This is the opinion of Advocate General Sharpston who recently stated that an employee’s dismissal for wearing an Islamic headscarf, was direct discrimination on the grounds of religion or belief.
Ms Bougnaoui, a Muslim design engineer, worked for Mircopole SA in France. Prior to her recruitment she was told that due to her client facing role, she would not always be able to wear her headscarf. A client complained that Ms Bougnaoui had worn her headscarf on a site visit. The client subsequently requested that she should not do so in future. When Mircopole asked Ms Bougnaoui to comply with the request, she refused, and as a result was dismissed.
In the opinion of the Advocate General a workplace ban on employees wearing religious clothing, such as a headscarf, is direct discrimination on the grounds of religion. Ms Bougnaoui had been treated less favourably due to religion than a comparator, as another employee who chose not to manifest their religion would not have been dismissed. This is crucial as the Advocate General stated that the directive not only extends to the religion but to the manifestation of that religion (wearing a headscarf), meaning this can amount to direct discrimination. The Advocate General also stated that although the court could treat this as an indirect discrimination case, she considered it to be a direct discrimination case.
The ECJ is not bound to follow the Advocate General’s opinion and interestingly in another recent case (Achbita and another v G4S Secure Solutions NV), a different Advocate General came to the opinion that a dress code which included a headscarf ban did not amount to direct discrimination. The ECJ’s decision in these cases is awaited with interest. If the opinion in Bougnaoui is followed, this would represent a move away from the existing approach to how the tribunals distinguish direct and indirect discrimination. In the UK it is generally accepted that dress code requirements can potentially give rise to claims for indirect discrimination, as the requirement to dress in a certain way applies to all employees equally. Employers are able to objectively justify indirect discrimination claims but there is no such defence for direct discrimination. This case illustrates that direct discrimination concepts can be widened to include less favourable treatment on the grounds of a person’s manifestation of their religion, not just their religion. If banning religious clothing is found to be a form of direct discrimination, UK employers will need to carefully re-assess their dress code requirements.