Islamic headscarf: customer’s objection not good reason for ban

We have reported on a case (Achbita v. G4S) which has gained some coverage in the press.

On the same day, however, the European Court handed down a decision on a very similar case in terms which were more expected.

Background

The Claimants in this case (which is called Bougnaoui and another v. Micropole SA) had been forbidden from wearing their Islamic head scarf at work because a complaint had been received by a customer of their employer.

As an act indirect discrimination, this may be legally defended by claiming that it was justified, as in the case of Achbita.

However the company took a different course in this case and claimed a defence that it was a “genuine occupational requirement” that employees not wear Islamic head scarves, due to the complaint.

The ECJ was quite clear that the genuine occupational requirement defence was not available in cases such as this, where the company relied purely on subjective considerations and the personal preferences of customers.

Implications

Whilst according to the ECJ it may still be justified where a measure forbidding headscarves and all worn religious manifestations is applied across the board (but query whether the Supreme Court would have held the same in a post-Brexit scenario), it is clear that genuine occupational requirement defences will be extremely hard to run when the employee is working in a normal job.

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