The Court of Justice of the EU (CJEU) published its long awaited judgements in two similar requests for preliminary rulings concerning the wearing of Muslim headscarves in the work place.
Both cases were lodged in April 2015 and concerned Muslim women who were dismissed from work after refusing to take off their headscarves. The applicant in the Achbita case (C-157/15) is supported by our Belgian member Unia. The Bougnaoui case (C-157/15) originated from France.
In its judgements, the CJEU found that an existing general internal rule of a private employer prohibiting the wearing of visible signs of political, philosophical or religious beliefs does not constitute direct discrimination on the basis of religion or belief as long as this internal rule is universally applied to all employees.
The Court also considered indirect discrimination and went on to rule that an employer’s desire to project an image of neutrality can constitute a legitimate aim, notably where the only workers involved are those who come into contact with customers. It suggests that the internal rule could also pass the proportionality test necessary in indirect discrimination cases (being necessary and appropriate), although the employer could be required to offer a post not involving any visual contact with customers.
Underlining the inadmissibility of an ad hoc prohibition on wearing visible signs of political, philosophical or religious beliefs the CJEU also ruled that in the absence of an established internal rule the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of the directive.
In its rulings the CJEU appears to have accepted the main findings of the Opinion of Advocate General Kokott (delivered in the Achbita case), dismissing the arguments of Advocate General Sharpston (delivered in the Bougnaoui case).
Arguably the Court also reached a conclusion that is at odds with and more restrictive on the freedom of religion and belief than the European Court of Human Rights’ judgment in the Eweida case, delivered in 2013. In that judgment, concerning the wish of a British Airways employee working with clients to visibly wear a cross, the ECtHR ruled that in such a position the employee’s freedom of religion has to be prioritised against the company’s desire to emit a neutral image.
The Belgian and the French national courts requesting the preliminary rulings will now have to decide the cases at national level, making use of the interpretation of EU law provided by the CJEU.
In 2017, Equinet’s Working Group on Equality Law will also analyse this case and other recent cases on religion and belief in the European and national courts.