The CJEU’s Headscarves cases: analysis of the contrasting AG opinions

Darryl HutcheonDarryl Hutcheon

Conflicts between the religious practices of workers and the ‘neutrality’ policies of their employers have repeatedly come before the European Court of Human Rights (“ECtHR”) and domestic courts in the UK. They now arise for the first time before the Court of Justice of the European Union (“CJEU”) in two cases: C-188/15 Bougnaoui v Micropole SA and C-157/15 Achbita v G4S Secure Solutions NV80. This note analyses the opinion of Advocate General Sharpston in Bougnaoui handed down on 13 July 2016; contrasts that opinion with the earlier opinion[1] of AG Kokott in Achbita; and considers what these decisions tell us about the future trajectory of EU (and domestic) discrimination law.

Facts in both cases

Ms Bougnaoui and Ms Achbita are Muslim women who were employed in customer-facing roles by private sector employers. Both wore headscarves but wore nothing which covered their faces. Ms Bougnaoui was told that her headscarf had ‘embarrassed’ the employees of a company client she had visited; she was dismissed when she refused to agree not to wear a headscarf on future visits to that client. Ms Achbita had worked for her employer for some time before she started to wear a headscarf; she was then dismissed on the basis that her new practice breached a strict company ‘neutrality’ policy.

AG Sharpston’s opinion in Bougnaoui

Several aspects of AG Sharpston’s opinion are worthy of comment.

First, she rejected the suggestion that EU law on religious discrimination ought precisely to reflect the ECtHR’s article 9 (freedom of religion) jurisprudence, in effect by allowing a human rights justification/proportionality defence to direct discrimination claims ([58] – [67]). AG Sharpston maintained that the Framework Directive 2000/78 (“the Directive”) set down a clear distinction: indirect discrimination can be defended by reference to proportionality, but direct discrimination admits of (much) narrower exceptions.[2] Her position stands in contrast to the view expressed by some senior judges in the UK that the lack of a general justification defence to direct discrimination is a “defect” in the law: see e.g. R (E) v Governing Body of JFS [2009] UKSC 15 at [9].

Second, AG Sharpston concluded that the decision to dismiss Ms Bougnaoui constituted direct, and not just indirect, discrimination ([83] – [89]). “Religion” for these purposes included manifestations of religion like wearing a headscarf. The judgment does not directly engage with the question of how courts should identify whether a particular act constitutes a “manifestation of religion”, but the case-law of the ECtHR on that subject will doubtlessly be persuasive. The recognition that religion is not just a status but an identity partly constituted by acts is intuitively attractive and compares favourably to the sometimes strained efforts of British judges to dissociate “religion” from acts which are obviously part and parcel of a person’s religion.[3] It leaves open the interesting question of whether EU law will permit employers to sanction employees whose religiously-motivated behaviour impacts negatively on other employees or on their work (as in the well-known “evangelising at work” cases). English courts have addressed this situation by distinguishing action taken because of religion/religious manifestations and action taken because of “the way in which (a worker) manifested or shared it”.[4] AG Sharpston’s opinion can probably be reconciled with that approach.

Third, AG Sharpston concluded that there was no basis to conclude that article 4(1) of the Directive (the genuine occupational requirement defence to direct discrimination claims) applied on the facts ([90] – [102]). It was decisive that Ms Bougnaoui remained perfectly able to perform her professional duties. Notably, AG Sharpston found it “hard to envisage” any application of the article 4(1) defence in religious discrimination claims, other than on health and safety grounds ([99]). She also gave a narrow reading to article 2(5) of the Directive (pursuant to which the Directive is subject to national measures which are necessary in pursuit of various public policy objectives), suggesting it could not be relied on by employers citing business reasons ([104] – [105]).

Fourth, AG Sharpston remarked on the application of the principles of indirect discrimination (in case the Court concluded that her characterisation of the claim as direct discrimination was mistaken). While an employer’s business reasons could constitute a legitimate aim, the question of proportionality was more complex ([134]). These kinds of issues could ordinarily be resolved by discussion between employer and employee; but ultimately, where an employer stood to lose out because of the prejudiced attitudes of its customers, “the business interest in generating maximum profit should… give way to the right of the individual employee to manifest his religious convictions” ([133]).

AG Kokott’s analysis in Achbita

AG Sharpston’s conclusions contrast very sharply with those of AG Kokott in Achbita. In AG Kokott’s view, Ms Achbita’s dismissal did not constitute direct discrimination: the requirement of neutrality affected her just as it affected “a confirmed atheist who expresses his anti-religious stance in a clearly visible manner by the way he dresses” ([52]). It may however be different where the ban at issue was based on specific “stereotypes or prejudice” (at [55]). Further, according to AG Kokott, the concept of “genuine and determining occupational requirement” can be interpreted more broadly to include the dress codes contained in a company policy ([82] – [84]).[5] Whether that approach can be squared with past CJEU jurisprudence emphasising the strict nature of the article 4(1) test is seriously open to question.

Finally, AG Kokott’s proportionality assessment concluded in the employer’s favour, noting that no alternative would have served G4S’s objectives of maintaining workplace neutrality equally. A couple of AG Kokott’s observations merit particular mention. She concluded that while sex or skin colour could not be “left at the door”, a religious employee “may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or… clothing” ([116]). Further, a female employee wearing a headscarf “may have an impact on the freedoms not only of their colleagues but also of the undertaking’s customers… on the other hand, the employer’s freedom to conduct a business may be adversely affected” ([132]). The assumptions in this part of AG Kokott’s judgment as to what religion attire means, how it impacts other people and what sacrifices religious people have to make to participate in working life are surprising, at least to this author.

Comment

The key question is whether the Court will adopt the approach of AG Sharpston or that of AG Kokott when it comes to pass judgment in these two cases. Albeit that the issues in the two cases are not in every respect identical, the conflict between the two approaches is undeniable and their judgments propose two very different futures for EU anti-discrimination law. Parts of AG Sharpston’s judgment read like a direct rebuke to the earlier opinion of her colleague:[6] compare, for example, AG Sharpston’s statement that “the requirements of one’s faith… are not elements that… can politely be discarded during working hours” ([118]) with AG Kokott’s suggestion that an employee “may be expected to moderate” their behaviour at work at [116].

It is to be hoped that the CJEU follows the approach of AG Sharpston. Albeit that the right answer in these two cases is (in the author’s view) fairly obvious, an outcome favourable to these two claimants would be a welcome development in European anti-discrimination law. It would break the trend built up by a series of ECtHR judgments[7] which have almost invariably favoured other interests over the right of Muslim women to dress in accordance with their religious beliefs. In particular, one hopes that the jurisprudence which emerges is free of the pernicious ideas that headscarves “infringe the freedoms” of other employees, or that it is legitimate for an employer to adopt policies which effectively seek to appease prejudiced customers.

[1] AG Kokott’s opinion was handed down on 31 May 2016.

[2] The main defences to direct discrimination – which are set out in articles 2(5) and 4(1) of the Directive – were interpreted very narrowly by AG Sharpston: see below.

[3] A well-known example is the decision of the Employment Appeal Tribunal in Azmi v Kirklees LBC [2007] IRLR 484. The EAT acknowledged that ill treatment based on manifestations of religion could amount to direct discrimination ([76]). However, it found no direct discrimination where a woman who wore a full-face veil was dismissed from her role as a teaching assistant on the basis that she was unable to communicate with students. The EAT’s identification of the proper comparator as a person who wore a full-face covering other than for religious reasons (at [55]) was highly questionable and suggested a narrow understanding of what “religion” means.

[4] See, for example, Wasteney v East London NHS Foundation Trust UKEAT/0157/15/A at [52] and [55]; and Grace v Places for Children UKEAT/0217/13 at [6].

[5] AG Kokott’s conclusion in this respect was buttressed with reference to article 16 of the EU Charter and the freedom and discretion of an employer in the management of its business.

[6] That opinion is only mentioned once in AG Sharpston’s opinion, in passing, at footnote 3.

[7] See, only by way of example, Dahlab v Switzerland (decision of 15 February 2001), Kurtulumus v Turkey (decision of 24 January 2006) and most recently SAS v France (decision of 1 July 2014).

One thought on “The CJEU’s Headscarves cases: analysis of the contrasting AG opinions

  1. Wearing a sexist headscarf in public is not protected by any Charter or Convention.

    They can believe in whatever they want but no legal text gives them the right to force feed us with their sexist discriminating beliefs.

    On top of that, a company that is private may chose to be religiously neutral.

    You are interpreting law according to your own convictions, as recent ECHR case law demonstrates: islamic veils are NOT protected in Europe and States have the right to fully prohibit them.

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