The Advocate General has recently given an opinion that the employer who banned a hijab when in contact with clients acted unlawfully and had committed an act of direct discrimination.
The case was a French case brought before the recent issues over dress in France. The employee was a female engineer. She was a practising Muslim and wore an Islamic headscarf at work and when she visited clients. The headscarf known as a Hijab covered her head but left her face exposed. Following a client complaint the Claimant was told not to wear the hijab when visiting clients.
She refused and was dismissed as a result. The French Tribunal dismissed her claim for discrimination based on her religious beliefs on the basis that it was “genuine and serious reason” similar to our genuine occupational requirement test which is also found in the Directive.
The matter was referred to the ECJ for a preliminary ruling on whether the employer’s policy requiring an employee to remove her hijab when in contact with clients fell within the genuine occupational requirement test. The Advocate General found it to be direct discrimination and it would only be lawful if based on a genuine occupational requirement which must be limited to matters which are absolutely necessary. It was plain that her dismissal was linked to the prohibition on the wearing of religious apparel. Whilst she had not been dismissed for being Muslim she had been directly discriminated against for a manifestation of her religion and had been less favourable treated as a result.
The opinion does however differ from the opinion of a different advocate general in another headscarf case which was found on its facts not to be discriminatory. The ECJ will have the final decision on the point when it gives its decision on both cases later this year.