Case C-188/15, Bougnaoui – wearing an Islamic headscarf in the information society

If a client of an IT company does not want any employee from that IT company who wears a headscarf, then can that IT company freely sack any of its employees who wear an Islamic headscarf without this being discrimination?

Background
Micropole Univers is a company that provides its clients with advice, engineering and specialised training in the realm of ‘business intelligence solutions’.

Asma Bougnaoui completed a traineeship at Micropole Univers and was then taken on as a project design engineer. She had started to work there on 15 July 2008 but precisely eleven months later to the day, she was called in for a conversation about her wearing a headscarf. The conversation resulted in her being fired one week later.

The letter from Mircopole Univers reasoned as follows. Ms Bougnaoui had been sent to Toulouse on a project. Everyday she had gone to the client wearing her Islamic headscarf. Her attire had caused disquiet among a number of the client’s staff, such that the client had subsequently requested Micropole Univers ‘not to send a headscarf next time’.

Micropole Univers’ letter went on to explain that despite the company fully respecting freedom of expression and religious conviction, she was not to wear a headscarf under any circumstances whenever she came into contact with the company’s clients, be that inside the firm or the outside. For the sake of Micropole Univers developing its business, the employees of Micropole Univers’ had to be reticent about expressing their personal views – clients demanded this of Micropole Univers.

To boot, Micropole Univers recalled that during the meeting she had been asked her not to wear a headscarf, this being a requirement of the job. She had not acceded to that demand so they were justified in terminating her contract of employment.

Nor would she be entitled to a paid period of notice, nor indeed any compensation whatsoever – continuing to wear her headscarf meant that it would be impossible to keep her at work since her attitude meant that it was impossible for her to work for Micropole Univers’ clients.

Litigation ensued, which wended its way up to the French Court of Cassation.

At France’s Court of Cassation
The relevant piece of EU legislation giving rise to the preliminary reference was the EU’s ‘equal treatment’ Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (OJ [2000] L303/16).

The relevant Article is 4(2)(2) on Member State exceptions to the principle of equal treatment, but this needs to be read together with Article 2 of the Directive, which provides:

Article 2
Concept of discrimination
1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
2. For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1;

Article 4
Occupational requirements
1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.

2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.

Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.

Thus the question was whether, for the purposes of Article 4(2), banning an employee from wearing of an Islamic headscarf was a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they were carried out. This was in the IT sector.

Furthermore, the judges at the French Court of Cassation recalled that there had already been an earlier judgment from the CJEU on the area of a client’s wishes.

The judgment was Case C-54/07, Feryn ECLI:EU:C:2008:397. The CJEU had held that an employer which states publicly that it will not recruit employees of a certain ethnic or racial origin constitutes direct discrimination in respect of recruitment within the meaning of Article 2(2)(a) of the Directive for such statements were likely strongly to dissuade certain candidates from submitting their candidature and, accordingly, to hinder their access to the labour market.

In that context, the French court also recalled Advocate General Poiares Maduro’s reasoning in that case (ECLI:EU:C:2008:155), who had said:

18. The contention made by Mr Feryn that customers would be unfavourably disposed towards employees of a certain ethnic origin is wholly irrelevant to the question whether the Directive applies. Even if that contention were true, it would only illustrate that ‘markets will not cure discrimination’ [footnote 15: Sunstein, C., ‘Why markets don’t stop discrimination’, in: Free markets and social justice, Oxford University Press, Oxford, 1997, p. 165] and that regulatory intervention is essential. Moreover, the adoption of regulatory measures at Community level helps to solve a collective action problem for employers by preventing the distortion of competition that – precisely because of that market failure – could arise if different standards of protection against discrimination existed at national level.

Question Referred
According to the Curia website, the French Court of Cassation has asked:

Must Article 4(1) of Council Directive 78/2000/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation […] be interpreted as meaning that the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out?

Comment
The timing of this case is propitious. The Belgian Court of Cassation has also made a reference about the wearing of an Islamic headscarf by an employee of G4S Secure Solutions. The case is docketed as Case C-157/15, Achbita. According to the Curia website, the Belgian Court of Cassation has asked:

Should Article 2(2)(a) of Council Directive 2000/78/EC […] of 27 November 2000 establishing a general framework for equal treatment in employment and occupation be interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?

Update – 21 February 2016
The Grand Chamber is due to hear this case on 15 March 2016. According to the Curia website, the Grand Chamber is scheduled to hear the C-157/15, Achbita case at 9am, and Case C-188/15, Bougnaoui at 11am.

Update – 9 May 2016
The Opinion of Advocate General Kokott in C-157/15, Achbita is to be handed to the Grand Chamber on 31 May 2016.

Update – 16 June 2016
The Opinion of Advocate General Sharpston in Case C-188/15, Bougnaoui is due to be handed to the Grand Chamber on 12 July 2016.

Update – 19 October 2016
While the Achbita and Bougnaoui Opinions of Advocates General Kokott and Sharpston seem difficult to reconcile, another preliminary reference about Islamic ritual has now arrived at the CJEU; see further, Case C-426/16, Liga van Moskeeën – ritual killing.

Update – 21 November 2016
There is another preliminary reference about religious discrimination which is now pending at the CJEU; see further, Case C-414/16, Evangelisches Werk für Diakonie und Entwicklung – bigotry seeks law’s blessing.

Update – 25 January 2017
Today, the House of Commons has published a report on the relationship between the provisions of the 2010 Equality Act and workplace dress codes. A copy of “High heels and workplace dress codes”, is available on the UK Parliament’s website.