One of the benefits of Brexit is that, in time, we will be spared the dreary task of ploughing through formulaic judgements from the European Court of Justice (ECJ) in Luxembourg. However, employment lawyers (who delight in these monotonous outpourings) had their hopes raised when on 14 March the ECJ issued two judgements on whether a company may lawfully forbid its staff from wearing the Islamic headscarf.
One case came from Belgium, and another from France (where Islamic full-face veils have become an especially controversial topic). Each involved private companies and the background facts were broadly similar. In the Belgian case, G4S Secure Solutions employed one Ms Achbita as a receptionist in 2003. Three years later, she told her employer that she intended to wear an Islamic headscarf at work. The company told her that she could not do this, as it had a policy of neutrality in the workplace: this forbade staff from wearing ‘any visible signs of their political, philosophical or religious beliefs’.
Ms Achita refused to comply and so was dismissed. She then sued, alleging unlawful discrimination on religious grounds. Both the Labour Court and the Higher Labour Court in Antwerp rejected her claims. They concluded that this blanket ban did not amount to a form of direct discrimination. They also concluded that there was no evidence of indirect discrimination, which can arise when an ostensibly neutral policy impacts adversely on a particular protected group. Under European equality law, direct discrimination cannot be justified, although indirect discrimination can be, provided either it can be objectively justified by reference to a legitimate aim of the employer, or the employer is seeking to uphold a genuine occupational requirement.
Ms Achita appealed again and a higher court referred the case to the ECJ for a preliminary ruling on a point of European Union law.
Meanwhile, in France, one Ms Bougnaoui met up with Micropole, another information technology company, at a student jobs fair in 2007. It explained to her on their first meeting that, should she come to work for the company, wearing an Islamic headscarf might pose a problem when she was in contact with customers. She was advised that she would not be able to wear the veil in all circumstances. She then applied for an internship at Micropole, which offered her a place. Part of her role included visiting clients at their offices. When starting work, she only wore a simple bandana. She then started wearing an Islamic headscarf. Matters came to a head in 2009, after a customer complained. She refused to stop wearing the headscarf, and was dismissed. She sued, also alleging discrimination.