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Achbita & Bougnaoui: A strange kind of equality
Schona Jolly QC considers the long awaited CJEU decisions in two recent cases concerning religious dress codes in the work place.
What Europe needed right now was a solid, sensible judgment from its top court on religious discrimination at work. It needed perspective, proportionality and a judicial underlining of support for religious minorities across Europe, many of whom have found themselves on the frontline of unwelcome attention in political and social debates on migration, identity and integration. It needed to find a way to balance the individual’s rights against that of an employer, where any clash arose, and to provide reasoned guidance for how those interests could be weighed against each other in law.
So it is a great shame that, in its first opportunity to consider religious discrimination within the context of EU Directive 2000/78 (“the Framework Directive”), today’s dual CJEU judgments in Achbita & Anor v G4S Secure Solutions NV  CJEU C-157/15, and Bougnaoui and ADDH v Micropole SA  CJEU C-188/15 do none of those things. Worse, to the extent that guidance has been provided, it potentially throws yet more obstacles in the way of minority communities and leaves employers, particularly in the UK, unclear about their obligations.
Both cases concerned, on differing facts, an individual female Muslim employee, who wished to wear a hijab at work. In both instances, this was not permitted by her employer, and both employees were dismissed.
In Achbita, there was a rule within G4S that employees could not wear visible signs of their political, philosophical or religious beliefs in the workplace and/or from engaging in any observance of such beliefs. Pursuant to that rule, Ms Achbita was dismissed when she insisted on wearing her Islamic headscarf at work. The Belgian court referred the following question:
“Should Article 2(2)(a) [of the Framework Directive] be interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs in the workplace?”
In Bougnaoui, it was not clear whether there was any internal neutrality rule such as that in Achbita. However, Ms Bougnaoui had been told by her employer that her headscarf had upset its customers, and so the employer insisted on the need for neutrality. The French court referred the following question:
“Must Article 4(1) [of the Framework Directive] be interpreted as meaning that the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out?”
Two very different opinions from AG Kokott (Achbita) and from AG Sharpston (Bouganoui) provided radically different reasoning and results, in respect of whether any neutrality rule could constitute direct or indirect discrimination, but also as to proportionality. AG Kokott placed heavy emphasis on the freedom of the employer to conduct its business, in line with Article 16 of the Charter of Fundamental Rights, and far less on the individual’s integrity and religious rights, whilst AG Sharpston adopted a more balanced approach that weighed both the employee’s individual needs and rights alongside those of the employer. As she said in her Opinion, “when the employer concludes a contract of employment with an employee, he does not buy that person’s soul”.  So, which route would the CJEU adopt?
The Court decided in Achbita that the so-called neutrality rule could constitute indirect rather than direct discrimination. It reasoned that because such a rule would treat any employee in the same undertaking in the same way, because the ban was on all symbols of religious or political belief, it could not be direct discrimination. Instead, because the rule could disadvantage employees of a particular religious group more than others, it could feasibly constitute indirect discrimination.
The real difficulty arises when the Court purports to offer guidance on the question of objective justification. In my view, it stumbles at the very first hurdle. It decides that a “desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate”. Moreover, it finds that such an aim is protected by the Charter itself, in Article 16, since it is said to relate to the freedom to conduct a business. And so it is that the Court holds that a provision which aims to neutralise the religious belief is itself a legitimate aim. From that point onwards, and without emphasising at all the individual’s right to manifest her or his religion, or the need to weigh the impact of the curtailment on that individual, the proportionality exercise becomes almost superficial.
The Court then considers whether such an internal rule would be appropriate. It concludes that it would be, provided that the policy is “genuinely pursued in a consistent and systematic manner”. In itself, this is confusing, because if it was not applied genuinely and consistently, there may be a valid argument that the policy was selectively applied and therefore constitutes direct discrimination, which cannot be justified. The Court does not consider whether appropriateness should be evidence-based, or related to the nature of the business the employer conducts, or the type of work which the employee is required to do.
The Court then considers whether the prohibition contained within the rule is limited to what is strictly necessary. It concludes that if the prohibition covers only those G4S workers who interact with customers that “must be considered strictly necessary for the purpose of achieving the aim pursued”. It does not define what customer-facing means. But why would it be strictly necessary anyway? Does that mean that other employees of G4S do not believe that G4S’s religious neutrality is compromised by the fact of an employee wearing a hijab (or turban, cross, kippah etc) but that other members of society (whom the employee would meet in their outward-facing role) are unable to make that distinction? This is really quite an extraordinary assumption in a modern, diverse and plural society. Nor does the Court appear to require that it be evidence-based in any way in order to determine that it be “strictly necessary”.
Somewhat oddly, the Court then goes on to state that it is for the referring court to ascertain whether, “taking into account the inherent constraints to which the undertaking is subject, and without G4S being required to take on an additional burden, it would have been possible for G4S, faced with such a refusal, to offer her a post not involving any visual contact with those customers, instead of dismissing her.” It is not at all clear how this fits with the preceding assumption that the prohibition is strictly necessary for achieving the am of neutrality, but appears to park the proportionality of the response to dismiss as a solitary final concern. It also starkly predicates the choice an employee may face: Be pushed out of sight or lose your job.
The Achbita judgment, in my view, creates considerably more problems than it solves. It reflects quite an extraordinary legal step in which the very prejudices and concerns regarding displacement from a socially inclusive labour market which the Framework Directive is intended to remedy are exaggerated and the position of minority communities may be considerably damaged.
Does this judgment mean that it is now acceptable for employers to claim, whether on a whim or otherwise, that they have an internal neutrality policy which makes it justifiable for them to refuse to employ, or to retain, a Muslim woman who covers her head with a scarf, or a Sikh man in a turban, or a Jewish man wearing a kippah, in any customer-facing role? Does this legitimise the removal from visible employment of those who look different in some way, without any further serious reason like health and safety concerns?
What, too, of the obvious differential treatment that could be caused by a difference in reason for the wearing of an item of apparel? A Sikh or Muslim man could be banished to a backroom, or dismissed, if they refused to shave a beard whilst a hipster is permitted to wear his because it is not in breach of any alleged neutrality policy.
There is a further disconnect yet. In Bougnaoui, the Court held that if such a rule did not exist, it could not be plugged by the Article 4(1) genuine occupational requirement defence, which was only to be deployed in very limited circumstances and that, moreover, the requirement must be “objectively dictated” by the nature of the occupational activities, or context in which they are carried out. Subjective considerations, such as the willingness of the employer to take account of the particular wishes of a customer would not suffice. But Achbita begs the question of whether those customer’s wishes suffice in order to bring about the neutrality rule in the first place or what role they play – if any – in the assessment of what is strictly necessary. There is a very fine distinction between these two competing positions, yet the Court makes no attempt in either case to resolve it. In short, by assuming that the neutrality rule is prima facie a legitimate aim, the other obvious questions which might flow from the very fact of the existence of such a rule are likely to be displaced.
The European Court of Human Rights has not been an especially expansive jurisdiction for Article 9 ECHR rights, but Eweida, Chaplin & ors v UK  57 EHRR 8 (which involved an employee who wore a small cross on a necklace, which British Airways had viewed as an impediment to its corporate image) represents a more nuanced and evidence-based approach to proportionality. In some ways the high watermark of its protection, Strasbourg expressly rejected the ‘freedom to resign’ doctrine within an Article 9 context, instead regarding that question as one part of the balancing exercise in which proper weight must be afforded to the importance of pluralism and diversity in our societies:
“On one side of the scales was Ms Eweida’s desire to manifest her religious belief. As previously noted, this is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image. The Court considers that, while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight.”
Since there was no evidence of any real encroachment on the interests of others, the European Court of Human Rights in that case found that there had been a violation of Ms Eweida’s Article 9 rights.
What is immensely disappointing in the Achbita judgment is the lack of emphasis or weight which it places on the value of a diverse, tolerant and plural society and on the individual’s right to manifest his or her religion. It is likely to impact heavily on visible groups, and those where intersectional discrimination is already problematic. What is deeply concerning is that it leaves employees in this country now wondering how safe their employment might be, and employers wondering where the boundary lines safely may be drawn.
As AG Sharpston said in her Bougnaoui opinion, “It would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.”
In the wake of today’s two CJEU judgments, religious equality in the workplace is looking like a rather strange kind of equal.
14th March 2017
© Schona Jolly QC
Schona Jolly QCspecialises in equality, employment and human rights work. She is Head of Cloisters Human Rights Practice Group.
Barristers at Cloisters are able to assist employers and employees with their claims of religious, and other forms of, discrimination in the workplace, and also to advise claimants and defendants in religious discrimination claims outside the field of employment, including in education and the provision of goods and services.
 For more detailed consideration of these two Opinions, see Islamic Headscarves and the Workplace reach the CJEU: The Battle for Substantive Equality, Schona Jolly  E.H.R.L.R., Issue 6, p672.
 For an example of more detailed criticism of the caselaw of the Article 9 jurisprudence of the Strasbourg court, see also fn.1.