Employment Law Snapshot – Issue 10

Introduction

Welcome to Issue 10 of my Employment Law Snapshot.

It’s good to see that the summer has eventually decided to turn up and I hope that you have been enjoying this week’s sunny weather.

Obviously, as a fully paid up member of the ginger community I have spent most of this week running from one area of shade to another. To be honest, I have been known to get sunburn when I lie too close to the bedside lamp……

Anyway, this week’s Snapshot deals with the important issue of religious discrimination in the workplace. I will be looking at two contrasting Advocate General opinions on whether it’s discriminatory for employers to ban wearing headscarves in the workplace.

The Legal Stuff

This week’s cases are called Achbita v G4S Secure Solutions and Bougnaoui v Micropole.

The facts in both cases are quite straightforward.

In Achbita, Ms Achbita worked for G4S as a receptionist in Belgium. G4S employees in Belgium are not allowed to wear any religious, political or philosophical symbols while on duty. Three years into her employment, she began to wear a headscarf at work and she was ultimately dismissed for refusing to abide by the dress code.

In the Bougnaoui case (which occurred in France) Ms Bougnaoui, a design engineer for Micropole, was told when she was recruited that due to the customer-facing nature of her role, she would not be able to wear her headscarf at work. A customer soon complained about her headscarf and when she refused to remove it, she was also dismissed.

Both the Belgian and French courts referred the cases to the European Court of Justice. In simple terms, the ECJ was asked whether a ban on employees wearing a headscarf at work constituted direct religious discrimination.

In Achbita, Advocate General Kokott gave the opinion that G4S’s ban on wearing religious symbols was not direct religious discrimination. This was on the basis that the ban affected all employees equally and it was not based on stereotypes or prejudice against a particular religion. The Advocate General went on to say that even if it was religious discrimination, the headscarf ban could be a genuine occupational requirement on the basis of G4S’s objective of religious neutrality and this was a legitimate commercial choice, given the broad range of clients that it had.

However, in the Bougnaoui case (and in direct contrast to the Achbita case) Advocate General Sharpton’s opinion was that the dismissal of Ms Bougnaoui was direct religious discrimination.

The Advocate General’s opinion was that it was clear that Ms Bougnaoui had been treated less favourably on the ground of her religion than a comparator would have been treated, i.e. an employee who had not chosen to manifest their religious belief by wearing particular clothes would not have been dismissed.

In contrast to Advocate General Kokott’s view in the Achbita case, Advocate General Sharpton said the argument that a headscarf ban was a genuine occupational requirement was not available in this case because it could not be used to justify a blanket ban on wearing religious clothes. The only situations where the Advocate General considered that a ban might be justifiable was perhaps where there were serious health and safety concerns, such as banning the wearing of a turban where a job required protective headgear.

Interestingly, in the Bougnaoui case, the employer tried argue that the ban was justified for commercial reasons, arising out of the customer complaint. However, this was given short shrift by the Advocate General when she said that religious discrimination cannot be justified on the grounds of commercial interest.

It’s now going to be up to the ECJ to try to resolve the difference of opinion between the two Advocate Generals when it reaches its final decision on these two cases in the coming months. As it stands at the moment, it’s probably fair to say that an outright ban on wearing religious clothing or symbols at work is a risky policy to adopt. You will no doubt remember the case of Ewieda where the European Court of Human Rights said that the UK failed to protect Ms Eweida’s right to wear a discrete cross outside her British Airways uniform.

We should hopefully have a definitive answer by the end of the year. Watch this space…..

And Finally…

On a lighter note, I’m sure by now that you’ll have all heard about the new Pokémon Go craze. Frankly, I haven’t got a clue what it is – I’m more of a Space Invaders and Pacman person. Apparently, the game involves people wandering around aimlessly whilst staring at their mobile phones. The current Mrs Tibble says that I don’t need a game to do that….

Whilst this sounds fascinating (not) some employers (including the likes of Boeing) have already banned it during work time to prevent employees from walking into things – presumably propellers…

On the flip side, one man in New Zealand has actually given up his job as a barista to hunt down these little Pokémons on a full time basis…

What a world.

Until next time.

Darren