The question of whether a ban on Muslim women wearing head scarves in the workplace has produced two different opinions. The first case arose in Belgium - Achbita and another v G4S Secure Solutions NV. In that case Advocate General Kokott concluded that such a ban did not amount to direct discrimination, but even if it did it was exempted under Article 4 of the EU Equal Treatment Framework Directive as a genuine and determining occupational requirement. This was on the basis that it was proportionate to require compliance with a dress code that gave effect to the employer's strict policy of neutrality. The policy forbade not only the wearing of head scarves but any religious, political or philosophical symbol while on duty.
Given that the ban applied to all religious symbols, without distinction, and extended to political and philosophical symbols, Advocate General Kokott was of the view the only difference of treatment to which it gave rise was between employees who wished to give active expression to a particular belief and those who did not. This could not be said to constitute less favourable treatment that was directly and specifically linked to religion. She also accepted that G4S's policy of religious and ideological neutrality was "absolutely crucial" given the range of customers it dealt with and the policy was therefore a legitimate aim.
Advocate General Kokott did conclude that because the dress code was capable of putting certain individuals at a disadvantage by comparison to other employees, it may amount to indirect discrimination. However, the Advocate General found the requirement to abide by the dress code to be a proportionate way of meeting a legitimate aim.
In contrast, in Bougnaoui and anor v Micropole SA, Advocate General Sharpston has given the opinion that an employee’s dismissal for wearing a head scarf at work, in breach of a direct instruction, was directly discriminatory, and could not be defended on the ground of ‘genuine and determining occupational requirement’.
Advocate General Sharpston was of the view that the Claimant's dismissal was linked to a prohibition on the wearing of religious apparel. Although she may not have been dismissed because she was Muslim, the prohibition on direct discrimination in the Directive extends to manifestations of religion or belief, and the Claimant had been treated less favourably on the ground of her religion.
As for whether the ‘genuine occupational requirement’ defence was available, Advocate General Sharpston was of the view that the derogation must be interpreted strictly. She found it difficult to envisage situations which would engage the defence other than those that gave rise to serious concerns on the grounds of health and safety. Micropole SA appeared to be relying on its commercial interests to justify applying Article 4. However, direct discrimination cannot be justified on the ground of financial loss, and its freedom to conduct business may legitimately be subject to restrictions in the interests of protecting the rights of others, including the right not to be discriminated against.
The ECJ is due to give judgment in both cases towards the end of the year. However, it is of note that in the case of Eweida v British Airways (regarding the wearing of a cross) the European Court of Human Rights found that corporate image was unlikely to justify a rule preventing the manifestation of an employee's religious beliefs - if the ECJ were to follow that line of thought then it seems more likely they will follow the conclusion reached by Advocate General Sharpston in Bougnaoui.