In the Bougnaoui v Micropole Univers it had been made clear on recruitment that, due to the client facing nature of the position in a company in France, the claimant would not be able to wear her headscarf at all times. A customer subsequently complained when the claimant wore her headscarf and when she refused to remove it she was dismissed. A claim to a Parisian labour court was unsuccessful, as was an appeal, and on further appeal the case was also referred to the ECJ.
In August 2016 in the Achbita case Advocate General Kokott found that while there was no direct discrimination their may be indirect discrimination caused by the ban on wearing headscarves. In the Micropole case Advocate General Sharpson found the ban did amount to direct discrimination.
The ECJ has now considered the cases. In the Achbita case they agreed with the Advocate General's finding no direct discrimination but that there may be indirect discrimination and the question of objective justification would arise. In the Micropole case the ECJ found that it was not clear whether the employer operated a policy similar to the one in the Achbita case, or whether the dismissal was based on the customer complaint about not wanting to be served by an employee wearing a headscarf. The national court would have to consider these matters, but the "genuine and determining occupational requirement" could not be used to justify subjective considerations such as an employer's willingness to take into account the particular wishes of a customer.
It is not a surprise that the ECJ found that direct discrimination had not taken place as a policy banning the wearing of religious symbols at work does not target any one particular religion for different treatment. For employers wishing to exercise a policy of neutrality similar to that in the Achbita case, full consideration must be given to (1) whether doing so is a legitimate aim in the particular circumstances of any given case, and (2) whether the ban is a proportionate way of achieving that aim. There is certainly no guarantee that, in a country as diverse as the UK, a policy of neutrality would be seen as a legitimate aim.