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The European Court of Justice (ECJ) Advocate General (AG) has given an interesting opinion on an employer's requirement that an employee not wear an Islamic headscarf, which contrasts with AG Kokott's opinion in another recent case.
The facts in Bougnaoui and another v Micropole SA are similar to that of the recent Belgian case of Archbita v G45 Solutions (Archbita) but the AG's opinion in each case are significantly different.
In Bougnaoui and another v Micropole SA, Ms Bougnaoui, a practising Mulsim, worked as a design engineer in France for Micropole SA. When she began working for Micropole, the company made it clear that she would not be able to wear her headscarf in all circumstances in light of the customer-facing nature of her role.
After a customer complained that Ms Bougnaoui had worn her headscarf, Micropole asked that she not do so in future. She refused to comply with this instruction and was dismissed.
Ms Bougnaoui brought an unsuccessful religious discrimination claim in a Parisian labour court and her appeal was also dismissed.
On further appeal, the French courts referred a question to the ECJ, asking whether Micropole's ban on the wearing of Muslim headscarves by staff amounted to direct and/or indirect discrimination under the Equal Treatment Framework Directive.
The AG's opinion
The AG concluded that Ms Bougnaoui's dismissal amounted to direct discrimination on the basis of her religious or belief: 'A design engineer working with Micropole who had not chosen to manifest his/her religious belief by wearing particular apparel would not have been dismissed'.
In relation to indirect discrimination, the AG indicated that she considered it unlikely that Micropole's ban on the wearing of religious signs could be justified. In the AG's opinion, where it is a question of commercial gain being weighed up against an individual's freedom to manifest their religion or belief, it is the individual's right to manifest their religious belief that should come out on top.
The opinion of the AG in this case is particularly interesting considering its contrast with AG Kokott's opinion in Archbita. In that case, AG Kokott considered that a blanket ban on visible religious symbols was not directly discriminatory and that, in relation to indirect discrimination, such a position may be justified by the employer's general policy of neutrality.
The AG's opinion in this case also appears to extend the application of direct discrimination to not only arise in circumstances where an employee is treated less favourably because of their religion, but also less favourable treatment because of a manifestation of that religion - which could include religious dress.
It is important to note that the AG's opinion is not binding on the ECJ, which may reach a different conclusion. The ECJ is due to hear the Archbita and Bougnaoui cases together, and it will be interesting to see which of the AG's opinions the ECJ will prefer.