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]).

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