Two Muslim employees in Belgium and France who were dismissed by private undertakings because of their insistence on wearing the Islamic headscarves at work challenged their dismissals in the Belgian and France courts. The Courts of Cassation in Belgium and France referred to the Court of Justice of the European Union about the interpretation of the EU directive on equal treatment in employment and occupation (Council Directive 2000/78/EC) in order to know whether these prohibitions constitute direct discrimination and “genuine and determining occupational requirement”.
The Court of Justice holds that under the directive “the principle of equal treatment” means that there is to be no direct or indirect discrimination on the grounds of, inter alia, religion.
In the first case (C-157/15 G4S Secure Solutions), the employee was dismissed because of an internal rule of the private undertaking, which states “employees are prohibited in the workplace from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs.” The Court holds that such an internal rule covers any manifestations of such beliefs without distinction and does not therefore constitute direct discrimination based on religion or belief within the meaning of the directive. According to the Court, however, such a prohibition may constitute indirect discrimination if it is established that apparently neutral obligation results in persons adhering to a particular religion or belief being put at a particular disadvantage. Nevertheless, such a difference of treatment would not constitute indirect discrimination if it was justified by a legitimate aim and if the means of achieving that aim were appropriate and necessary.
The Court states that an employer’s desire to project an image of neutrality concerning the dresses of its workers relates to the freedom to conduct a business and is legitimate notably where the only workers involved are those who came into contact with customers. As to the appropriateness, the Court holds that it is for to the national courts to ascertain whether the prohibition covers only workers who interact with customers and whether it would have been possible for the employer to offer the employee a post not involving any visual contact with those customers, instead of dismissing her.
In the second case (C-188/15 Bougnaoui and ADDH) where the employer has taken account of a customer who does not wish to have the services of a worker wearing an Islamic scarf, the Court holds that if the dismissal of the employee was based on an internal prohibition, it is for the national courts to ascertain whether the conditions set out in the G4S Secure Solutions are satisfied. By contrast, if the dismissal was not based on such an internal rule, it would be necessary to determine whether the dismissal is justified for the purposes of Article 4(1) of the directive, according to which Member States may provide that a difference of treatment does not constitute discrimination where, by the reason of the nature of the particular occupational activities, the characteristic at issue constitutes a genuine and determining occupational requirement.
The Court points out that it is only in very limited circumstances that a characteristic related to religion may constitute a genuine and determining occupational requirement, a concept which does not cover subjective considerations. The Court holds that the employer’s willingness to take account of the particular wishes of the customer is a subjective consideration and therefore it cannot be considered a genuine and determining occupational requirement within the meaning of the directive.
This article is written by Cansu Muratoğlu based on the Court of Justice of the European Union Press Release No 30/17.