- Date:
- 12 Aug 2016
Two advocates general have issued an opinion in two cases concerning religious headwear within a short period of time. However, the two opinions differ.
European employers are not allowed to discriminate against their employees based on religion, among other things as a result of the Employment Equality Framework Directive. However, the EU Court has not yet had an opportunity to consider the issue of whether and to what extent an employer's ban of religious headwear in the workplace would constitute discrimination. In Denmark, the Supreme Court ruled as early as in 2005 that a ban on headwear (including religious headwear) does not constitute indirect discrimination so long as the ban is objectively and reasonably justified by the employer's wish for a neutral appearance in relation to religious beliefs, political opinions, etc.
On 31 May 2016, Advocate General Kokott issued her opinion in a case from a Belgian court concerning religious headwear. She reached the same result as the Danish Supreme Court back in 2005.
However, in a recent opinion in a similar case from a French court, Advocate General Sharpston has reached another conclusion.
The French case concerns a Muslim design engineer who wore a headscarf. On recruitment, it was emphasised that her freedom of religion would be respected, but she would not be allowed to wear the headscarf when in contact with the company's customers. Shortly into her employment, a customer complained about her headscarf. When she refused to comply with the company's dress code and remove her headscarf when in contact with customers, she was dismissed.
The employee believed that she had been discriminated based on religion and challenged the dismissal. However, the French court found it necessary to refer some questions to the EU Court for a preliminary ruling.
Direct or indirect discrimination?
As opposed to the Advocate General in the Belgian case, the Advocate General in the French case sees this as a case of direct discrimination. The reason for her taking this view is that there was a dress code in the company which banned religious signs, including religious apparel, in connection with customer visits and that the employee was dismissed because of her wish to wear her Muslim scarf (hijab) in spite of the dress code.
Thus, the facts of the case differed from those of the Belgian case, where the employer had issued a clearly worded general dress code banning employees from wearing visible signs of their political, philosophical and religious beliefs in the workplace. The company's dress code had been approved by the works council and reflected the employer's wish for its employees to have a neutral appearance to the external world in all respects.
The question was then if the specific derogations to the prohibition on direct discrimination under the Employment Equality Framework Directive applied. However, the Advocate General concludes after lengthy analysis that the scope for applying the derogations available is narrow and that none of the derogations, including the derogation concerning a genuine and determining occupational requirement, can apply in the case at hand.
In her comments, however, the Advocate General has decided to also analyse the law in a case of indirect discrimination and thus, in reality, the Belgian case. As can be seen from the Advocate General's opinion in the Belgian case, the issue to consider in such a situation is whether the employer's apparently neutral dress code may be regarded as objectively justified by a legitimate aim and whether the means of achieving that aim are appropriate and necessary.
In relation to the legitimate aim, Advocate General Sharpston notes that also the employer's business interests, including a wish to communicate a certain image to its customers, may constitute a legitimate aim.
In the analysis of whether the requirement of proportionality is met, however, Advocate General Sharpston seems to be proposing a somewhat stricter test than that proposed by Advocate General Kokott in her opinion in the Belgian case.
Norrbom Vinding will follow the two cases and report on the rulings, which are expected to be delivered in late 2016.
Norrbom Vinding notes
- that Advocate General Sharpston concludes that the French case constitutes direct discrimination based on religion as the employer's dress code apparently was directed only at religious symbols and the employee was dismissed with a specific reference to her wish to wear the Muslim headscarf;
- that the case thus differs from the Belgian case, in which Advocate General Kokott issued her opinion earlier this summer, where the employer had introduced a general dress code banning the employees from wearing any visible signs of their political, philosophical and religious beliefs, which means that the dress code was not a ban directed exclusively at religious symbols;
- that, even so, there are many indications that the two Advocates General differ in their view of how to balance the employer's business interests against the employee's wish to practice his or her religion in a situation of indirect discrimination; and
- that, accordingly, the final judgment of the EU Court in the two cases (the Belgian as well as the French) will set a strong precedent for all EU member states and thus greatly affect the scope available for employers to enforce a dress code which is based on objective and reasonable criteria.
