Neutrality and Workplace Restrictions on Headscarves and Religious Dress: Lessons from Achbita and Bougnaoui

Neutrality and Workplace Restrictions on Headscarves and Religious Dress: Lessons from Achbita... 1. INTRODUCTION Bans on the wearing of religious symbols, and particularly the Islamic headscarf, in the European public square have been controversial and have been challenged on several occasions on human rights grounds (primarily under Article 9 (Freedom of thought, conscience and religion) of the European Convention on Human Rights (ECHR)).1 However, restrictions on religious dress in the workplace have been fully considered only recently, most significantly before the European Court of Human Rights (ECtHR) in Eweida and Ors v United Kingdom.2 In its judgment, the Court concluded that the right to manifest religion through dress could be restricted,3 in situations where there was a health and safety concern but not in situations where customer image was the justification for any restrictions—regarding the latter, the religious right carried more weight than the employer’s desire for uniformity.4 However, the judges did consider that the fact that the item of dress in question in Eweida, a small cross on a chain, was ‘discreet’ was pertinent to its decision.5 Whether the Islamic headscarf, for example, once described by the ECtHR as ‘a powerful external symbol’,6 could be considered ‘discreet’, and how much discretion actually mattered when weighed in the overall balance, were left as open questions. These questions were in turn partially answered in Ebrahimian v France,7 where the ECtHR agreed that a public employer in France could rely on the national principle of laïcité to justify a headscarf ban for a social worker, not least due to the ‘ostentatious’ character of the headscarf.8 However, this judgment must be qualified as it applied in a public-sector employment context and, more specifically, in healthcare, where it was considered particularly important that patients should not be exposed to religious manifestation by employees to avoid doubts about their impartiality.9 It is in this legal context that the Court of Justice of the EU (CJEU) has, for the first time, addressed similar questions of the legality of workplace bans on the Islamic headscarf in its parallel decisions in Achbita and Anor v G4S Solutions NV10 and Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA,11 handing down its preliminary rulings on 14 March 2017. In Achbita, the legal issues were primarily concerned with Article 2(2) of Directive 2000/78, the relevant part of which reads (in context): 1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, … By contrast, in Bougnaoui, the referring court cited Article 4(1) of Directive 2000/78, which reads: Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. The eventual decisions of the CJEU, to uphold the headscarf ban in Achbita but to overturn it in Bougnaoui, appear, prima facie, to be somewhat in conflict. Handed down on the same day, the Court did however take some pains to ensure that the decisions were in fact mutually compatible—they were distinguished partly by the fact that the referring courts asked different questions, thus engaging separate articles of the relevant directive, and partly by the presence in Achbita of a discernible uniform rule capable of consistent application in contrast to an apparently ad hoc instruction on dress in Bougnaoui. However, although the decisions do not directly disagree, there is certainly a measure of conflict between the analyses in the respective Opinions of the two Advocates General which informed the judgments, reflecting, inter alia, some of the debates about the nature and importance of religion as a protected characteristic, and the extent to which its manifestation can and should be guaranteed in the workplace. 2. THE FACTS OF THE CASES Achbita concerned a Muslim employee who worked as a receptionist for the security firm G4S Secure Solutions in Belgium. G4S operated a prohibition on the wearing of religious, political or philosophical symbols while on duty at work. Ms Achbita worked for three years for the company in accordance with the religious neutrality required by G4S. However, in May 2006, she announced that she would be wearing an Islamic headscarf for religious reasons on her return to work following a period of sick leave. She was dismissed as a result, with severance pay, on 12 June 2006. With the support of the Belgian Centre for Equal Opportunities and Combating Racism, she brought an action before the Belgian courts for damages from G4S for wrongful dismissal or, in the alternative, damages for infringing the law combating discrimination. Her action was unsuccessful before the court of first instance and on initial appeal. On further appeal, the Belgian Court of Cassation referred the question to the CJEU of whether or not Article 2(2) of Directive 2000/78 should be interpreted to mean 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 at the workplace?’12 The second case, Bougnaoui, involved a Muslim design engineer who worked for the company Micropole SA in France. On 15 June 2009, she was summoned to a disciplinary meeting and subsequently dismissed on 22 June. The letter of dismissal explained that a client, Groupama, had objected to Ms Bougnaoui wearing ‘a veil’ (understood by the Advocate General to mean a headscarf or hijab)13 while working on their premises as this had ‘upset’ a number of employees.14 The letter reminded Ms Bougnaoui that when she had first been recruited by Micropole she had been advised that she would not always be able to wear the veil in front of clients as ‘discretion’ would be required in giving expression to ‘personal preferences’.15 When formally asked to abide by the company’s ‘principle of necessary neutrality’ and agree not to wear the veil, Ms Bougnaoui refused to do so. As a result, the letter concluded, she was being dismissed, albeit with regret as she had displayed ‘professional competence’ and ‘potential’.16 In November 2009, Ms Bougnaoui challenged her dismissal at a French Labour Tribunal, claiming it was a discriminatory act based on her religious beliefs. The tribunal rejected her application, and this was upheld by the Court of Appeal in Paris. On further appeal, the Court of Cassation referred the question to the CJEU: Must Article 4(1) of [Directive 2000/78] 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?17 3. THE OPINIONS OF THE ADVOCATES GENERAL A. Religion and Manifestation A foundational question for both Advocates General was whether or not the prohibitions under Directive 2000/78 on discrimination applied not only to religion or belief itself but also to the manifestation of that religion or belief.18 Advocate General Kokott (re. Achbita) was somewhat equivocal. While recognising the importance of external manifestation of ‘religious practice’ to an individual’s identity (and also recognised under the Charter of Fundamental Rights of the European Union),19 nevertheless she observed that employees should not expect to observe all their ‘religious customs’20 in the workplace: While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.21 In her Opinion on Bougnaoui, AG Sharpston, on the other hand, observed that Article 9 ECHR and Article 10 of the Charter made it clear that the freedom to manifest religion is ‘intrinsic’ to freedom of religion and belief itself.22 Although religious observance may vary in form and intensity over time and according to individual conviction, such that some aspects of manifestation may be negotiable, nevertheless (in sharp contrast to AG Kokott) ‘it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not’.23 She also observed that, although some religious symbols may be described as discreet, others are clearly not, such as the Sikh turban—but this does not make any difference to the perceived obligation to wear them.24 In outlining her understanding of religious manifestation, AG Sharpston also delineated a distinction between freedom to manifest religion and ‘proselytising on behalf of one’s religion’.25 The former requires delicate balancing against the employer’s right to conduct his business. The latter, however, ‘has no place in the work context’ and may be legitimately curtailed by an employer so that employee’s time is used for the purpose it has been ‘bought’ and to ensure ‘harmonious working conditions’ among the workforce.26 Religious dress, for the avoidance of doubt, fell within the first category. B. Direct Discrimination These different conceptions of the significance of the manifestation of religion are arguably central to the contrasting views on the applicability of direct discrimination expressed in the two opinions. In Achbita, on the question of direct discrimination, AG Kokott conceded that a prima facie case could be established on the basis that the G4S operated a rule specifically targeted at preventing the wearing of ‘religious’ symbols, and so the less favourable treatment suffered by Ms Achbita could be directly linked to religion.27 Furthermore, she noted that the relevant directive had been broadly construed under European case law to find direct discrimination in circumstances where a measure was ‘inseparably linked to the relevant reason for the difference of treatment’.28 However, previous case law could be distinguished from the given case because it concerned ‘individuals’ immutable physical features or personal characteristics—such as gender, age or sexual orientation—rather than with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here’.29 ‘On closer analysis’, the Advocate General noted that there was no discrimination between religions as the ban applied to all religious symbols without distinction, and the rule applied not only to religious symbols but also to the visible display of political or philosophical beliefs, including atheism (such that it was neutral from the perspective of religion and ideology). On this basis, the only difference of treatment was between ‘employees who wish to give active expression to a particular belief…and those who do not feel the same compulsion’.30 This in itself could not constitute less favourable treatment that is directly and specifically linked to religion. In Bougnaoui, on the other hand, AG Sharpston concluded that Ms Bougnaoui was treated less favourably on the ground of her religion than someone else in a comparable situation would have been treated (such as a design engineer who had chosen not to manifest his or her belief by wearing a particular dress).31 Her dismissal should therefore be considered to be direct discrimination under Article 2(2)(a) of Direct 2000/78, unless one of the derogations under that directive applied. C. Occupational Requirements Following on from her analysis of direct discrimination, AG Sharpston noted that the only likely derogation was the derogation under Article 4 which permits an otherwise discriminatory difference of treatment only in circumstances where to do so is in pursuit of a genuine and determining occupational requirement. In her view, this should be interpreted to limit the derogation ‘to matters which are absolutely necessary in order to undertake the professional activity in question’,32 taking into account both the activity and the context in which it takes place.33 The ‘obvious’ example of this would be in the area of health and safety at work, where it would be legitimate, for example, to exclude a Sikh turban-wearer who refused to wear protective headgear.34 However, AG Sharpston did not think that the freedom under Article 16 of the Charter to conduct a business could activate the Article 4(1) derogation in the circumstances like these where customer relations rather than the ability to do the job were at issue. In Achbita, AG Kokott similarly considered the possibility that an Article 4 occupational requirement might apply, should the Court disagree with her conclusion on direct discrimination. Taking a rather different view to that of AG Sharpston, she emphasised the discretion of an employer (under Article 16 of the Charter) to pursue its business and, in view of this, argued that a dress code may be imposed, in particular in roles where there is frequent customer contact (as opposed to back-office jobs, which might be suitable instead for employees such as Ms Achbita).35 D. Indirect Discrimination In Achbita, having rejected the possibility of direct discrimination, the Advocate General did also consider whether or not the rule prohibiting religious symbols might alternatively constitute indirect discrimination based on religion. Unsurprisingly, she identified that in principle this might be so,36 but that in this case it could be justified nonetheless by a legitimate aim of the employer, such as the enforcement of a policy of religious and ideological neutrality where that policy could be regarded as a genuine and determining occupational requirement (within the meaning of Article 4(1) of Directive 2000/78).37 Whether it was proportionate to apply this rule to employees such as Ms Achbita was largely dependent on the discretion of national authorities. Ultimately, therefore, it was for the Belgian courts to strike a fair balance between the conflicting interests in the present case, taking into account all the relevant circumstances including: the visibility and conspicuousness of the religious symbol; the nature of the employee’s activity (including seniority); the context of the role, including the extent to which he or she has contact with external individuals; as well as the national identity of the Member State.38 In Bougnaoui, AG Sharpston also analysed the potential application of indirect discrimination. She did this on the assumption that a theoretical rule preventing the wearing of religious dress and symbols also extended to ‘any item of apparel which reflects the wearer’s individuality in any way’ (such as a college tie or a football supporter’s T-shirt).39 Such a rule would be indirectly discriminatory on the grounds of religion and belief and would require objective justification as legitimate and necessary in pursuit of a legitimate aim. An employer’s business interest would be likely to constitute a legitimate aim but, to determine whether or not the means to achieve this aim are appropriate and necessary, a process of determining proportionality would be required which would normally involve a concerted effort by the relevant national courts to balance the employer’s right to run his business with the employee’s right to manifest religion. 4. THE DECISIONS OF THE COURT In Achbita, the Court itself agreed, on the central question, with AG Kokott: In the present case, the internal rule at issue in the main proceedings refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction. The rule must, therefore, be regarded as treating all workers of the undertaking in the same way....40 As no evidence had been presented to indicate that the rule had been applied any differently to Ms Achbita, then there was no direct discrimination based on religion or belief for the purposes of Article 2(2)(a) of Directive 2000/78. It did however recognise that such a rule had the potential to constitute unlawful indirect discrimination. Although this was primarily a matter for national courts, the Court took it upon itself to issue some guidance for the referring court on where prima facie indirect discrimination may be justified. In terms of a legitimate aim, it noted that ‘the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate’,41 in particular (but presumably not exclusively) when such an aim related to workers who have contact with customers. Such an aim is legitimate because it is in keeping with an employer’s freedom to conduct a business, as recognised in Article 16 of the Charter of Fundamental Rights.42 The court went on to suggest that such an inference can also be made from the European Court of Human Rights decision in Eweida and was therefore not incompatible with the ECHR. As regards the appropriateness of the kind of rule forbidding religious dress and symbols, it should be considered appropriate in pursuit of a policy of neutrality, assuming that the policy is genuine and consistently and systematically applied. It would be for the national court to determine whether or not G4S’s policy on religious, philosophical or political dress conformed to this standard. To decide whether or not the prohibition was necessary, the national court would need to identify whether or not it applied only to G4S workers who interacted with customers. If so, the prohibition must be considered strictly necessary to achieve the aim pursued. Equally, it would be a requirement to ascertain whether or not it would have been possible for G4S to offer Ms Achbita, instead of dismissing her, a role without visual contact with customers.43 In Bougnaoui, the Court itself followed the analysis of the Advocate General in its disposal of the actual issue which had been referred to it. It agreed that direct discrimination can engage the manifestation of religion as well as core belief and that the term ‘religion’ at Article 1 of Directive 2000/78 should be interpreted to be inclusive of both. It also found that if there was differential treatment amounting to direct discrimination in the case of Bougnaoui, then this could not be justified as an occupational requirement as such a requirement must be ‘objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out’ and cannot ‘cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer’.44 The Court was however rather less sure than AG Sharpston that the situation of Ms Bougnaoui was one of direct as opposed to indirect discrimination, concluding that this was unclear from the order for reference. If her dismissal had been due to a ‘rule…prohibiting the wearing of any visible sign of political, philosophical or religious beliefs’ (echoing the formula in Achbita), which put particular religious adherents at a disadvantage, then this would amount to indirect discrimination,45 which might then be justified by a legitimate aim, such as projecting a neutral image to customers (agreeing with Achbita), and if the means of achieving that aim were appropriate and necessary.46 However, if no such rule existed, and the employer was singling out the headscarf in response to customer pressure, then direct discrimination is likely to be engaged.47 5. ANALYSIS A. Religion and Manifestation Although the Court in both Achbita and Bougnaoui accepted with limited discussion that the definition of religion should encompass the manifestation of religion, the more detailed consideration of this issue by the Advocate Generals is worthy of comment. In Achbita, AG Kokott made frequent reference to notions of self-restraint and choice in matters of religion to inform her opinion. The implication is that religious employees have discretion over when and where they manifest their beliefs. The basis for this is the well-known ‘belief–action’ distinction that is particularly applied to freedom of religion and belief as a human right (for example under the ECHR) and is here extended to apply in a discrimination law context.48 Someone may believe something and this is entirely inviolate (in the so-called forum internum) whereas acting on that belief is more contested (and takes place in the forum externum). Such a distinction is more difficult to apply to those characteristics that are said to be immutable such as sex, race and sexual orientation. The problem with the belief–action distinction is that it can be mis-applied to suggest that only the forum internum is truly core to an individual’s religion—the way it is expressed is very much secondary. Indeed, it is often seen as a matter of individual choice whether to engage in particular forms of manifestation.49 Thus, it is not unreasonable to expect individuals to exercise restraint in the way they dress or behave. This can lead to a conclusion such as that suggested by AG Kokott that, whereas people cannot leave their skin colour or sex at the door, they can leave their religious practice there. However, this analysis is problematic.50 Not only can it lead to religion and belief becoming a ‘second class citizen’ as far as equality and non-discrimination is concerned,51 but it neglects the importance of conscience. Indeed, what might appear to a third party to be the exercise of choice can be recast as a response under compulsion to the claims of conscience, where conscience is informed by the perceived obligation to obey God.52 If this is the case then to leave something ‘at the door’ which is required by conscience becomes a much more painful and sacrificial process than the metaphor implies.53 However, as AG Sharpston perceptively notes, conscience may not inform all forms of religious manifestation for all religious actors, and religious conviction can vary over time.54 This is why she is correct to argue that balancing employers’ and religious rights proportionately may involve some sensitive negotiation between the two parties. Indeed, it may be argued that the more an individual feels compelled by conscience to manifest his or her religion in a particular way (and one factor in determining this is individual sincerity),55 the stronger must be the employer’s rationale for restrictions. As Sharpston’s analysis shows sensitivity to the nuances of religious practice which is absent from the other analyses, it is somewhat jarring to read her observations about proselytism. Not only are these observations of very limited relevance to the question at hand, but they also have no obvious basis in law. What she appears to do is to create a new dichotomy between manifestations of religion, which may be exercised with qualification in the workplace, and proselytism ‘which has no place there’.56 Even if proselytism, which is capable of wide definition, is taken on its plain meaning as seeking to convert others to a particular religion or religious view, then it is still surely a bona fide manifestation of religion rather than some undesirable third category.57 There may be some forms of proselytism which are illegitimate, perhaps due to the deliberate and cynical targeting of vulnerable individuals, but the activity itself, exercised in good faith, must surely be regarded as legitimate.58 This is not to say it should not be restricted at work,59 but the better course would be to look to the employer’s legitimate aim in imposing restrictions (proportionately) rather than an outright denial of the status of the activity as manifestation of religion per se. B. Direct Discrimination In both rulings, to avoid finding what would otherwise be directly discriminatory differential treatment, the CJEU followed AG Kokott’s acceptance that a general rule could be applied seemingly selectively and yet still apparently retain its neutrality. Thus, an employer may ban religious symbols and dress as long as it also bans the wearing of political and philosophical slogans or symbols. AG Sharpston, on the other hand, had suggested that to be neutral such a rule would need to forbid the wearing of any item of attire designed to be reflective of personal identity. It is submitted that this is the correct approach. While it is possible that employers might be acting in good faith by imposing a general restriction on religious, political and philosophical ‘attire’, it is surely clear that a less scrupulous employer might employ this wider category as a fig leaf for its true intention which is to single out and ban religious identity at work. Indeed, the point is obvious in considering how exactly someone might ‘wear’ his or her political or philosophical beliefs—the only real example which AG Kokott could offer was the wearing of a slogan-bearing pin, T-shirt or ‘headwear’60 (an example which was also extended to religious slogans).61 Apart from the obvious empirical observation that few people actually seek to (regularly) wear slogan-bearing clothing in the workplace,62 the Advocate General has surely fallen into category error on this point. Religious dress or symbols, which people sincerely feel mandated to wear either through personal conviction or because of a perceived religious obligation, are entirely different to the wearing by personal choice of a T-shirt with a slogan. There is no evidence that anyone could reasonably feel under a duty of conscience to the latter garment (or badge bearing the same or similar words) in the workplace. Indeed the two can be distinguished on another level—the T-shirts crudely (and conspicuously) articulate religion or belief in a way that discreet (in its wider meaning) religious symbols or dress do not. Indeed, it is a great pity that AG Kokott, having rightly attached importance to the fact that Achbita had a ‘sincere belief’ that she should wear the headscarf, missed this equally crucial point.63 C. Legitimate Aim Both decisions concern themselves to a great extent with the notion of a legitimate aim either for the purposes of identifying an occupational requirement or in response to a possible indirect discrimination claim. In Achbita, the right of an employer to argue a policy of religious (and political) neutrality was considered sufficiently weighty in principle to constitute a legitimate aim. The Court in Bougnaoui (and in this respect diverging from AG Sharpston’s opinion) agreed while essentially arguing that such policy-making cannot be ad hoc (or subjective) in response to a particular customer demand. The difficulty with ‘neutrality’ is that it may be a synonym, in this context, for secularism; some versions of secularism are intrinsically hostile to, rather than symbiotic with, religion and so it is difficult to see it necessarily as a neutral creed.64 However, even if a truly neutral version of secularism can be identified (and it is highly doubtful that the French and Belgian versions of secularism would qualify), it is difficult to see why an employer would have a pressing need to present this beyond a simple preference to convey a uniform image to its customers. It is possible that such a need might arise in places where there has been a history of sectarian conflict, such as Northern Ireland, but it is difficult to see the same need elsewhere. It would seem rather that an employer is simply responding to the perceived tastes of its customers and these tastes may be motivated by rather unworthy aims such as a dislike of conspicuous Muslims (or other groups). It seems odd that the Court would be affirming an employer’s right to indulge the prejudices of its customers (as long as that indulgence is codified into company policy), in a way which it would not be permitted to do in other circumstances.65 It is this aspect of the judgments which appears also to be out of step with the ECtHR decision in Eweida and Ors where the employer’s desire to present a uniform image was considered intrinsically less weighty than the employee’s desire to wear a religious symbol, not least because there was no ‘real encroachment on the interests of others’.66 It is similarly difficult to identify any real encroachment on the interests of others in Ms Achbita’s decision to wear a headscarf at work. The ECtHR did of course qualify its analysis to reflect the fact that Eweida’s religious symbol was ‘discreet’ which allowed the AG Kokott an opportunity to distinguish her Opinion from that decision (albeit that she preferred her own formula of ‘size and conspicuousness’).67 The precise meaning of ‘discreet’ is, however, worthy of consideration. The word is often synonymous with small, but this need not necessarily follow. Even small symbols can be very indiscreet, depending on what is depicted on them.68 Equally, items of dress such as a headscarf or turban might conceivably be described as ‘discreet’ despite their relative size, if they are plain or in conformity with an organisational uniform. Interestingly, and surely correctly, AG Sharpston expressly distinguished the full face veil from the headscarf in her opinion. Certainly, it would be difficult to argue that the former can be ‘discreet’ or ‘inconspicuous’, given, as Sharpston correctly identified, the incongruity of face covering and mores of face-to-face communication in Western society.69 However, even if the Court in Eweida used the term ‘discreet’ to mean small,70 AG Sharpston was surely correct to argue that this makes little difference to the wearer. Discreet, with that meaning, appears to imply some available self-restraint which the religious actor might or might not employ. The point is well made that the religious actor may not feel he or she has such a choice. This is likely to be particularly true for adherents of certain religions, such as Islam or Sikhism, where many feel mandated to wear dress which some are likely to consider less discreet than, for example, a Christian cross worn as jewellery. This may also suggest that a dress rule apparently neutrally applied may create a greater burden for some religious employees than others and this naturally calls into question the assertion by AG Kokott that such a rule creates ‘no discrimination between religions’.71 D. Proportionality The Court itself did not provide detailed guidance for national courts on approaching the questions of the appropriateness and necessity of applying a legitimate aim; however, in Achbita, AG Kokott set out four key reference points, not all of which appear easy to justify. The first of these (the size and conspicuousness of the symbol) has already been considered. Of the other three elements, the nature of the activity (namely the customer-facing nature of the role) appears in keeping with the logic of the Opinion (but becomes less compelling if ‘image’ is treated, as it is argued here that it should be, as an inadequate reason for imposing restrictions, unless the image is particularly jarring). The ‘context’ is more troubling in terms of the suggestion that more senior employees might be expected to show greater restraint. Employment position does not affect a sense of religious obligation so to fetter senior employees where junior employees would not be so fettered is to impose a greater burden on them. Indeed, a logical consequence of such reasoning would be to permit the restriction of employees from some (chiefly minority) religious backgrounds (such as Muslim women and Sikh men) into junior roles, at the expense of equality of opportunity in the workplace. This would appear to require a compelling justification. Whereas the ECtHR has identified in the past that seniority might be a reason to restrict proselytising activities involving more junior personnel (in a military context) due to the undue pressure they might exert because of their positions,72 it is difficult to see how that logic could apply to the wearing of religious symbols unless they are assumed to have a proselytising character,73 but this possibility appears (rightly) not to have been entertained by the CJEU. If there is any other basis for imposing greater restrictions on senior rather than junior employees (however difficult this may be to envisage) it was not articulated by AG Kokkott. Finally, the relevance of national context may act to partially reassure those in the UK who have been alarmed by these decisions. Deference to national context has long been a principle of judicial interpretation for the ECtHR (not least in its treatment of restrictions on religious dress)74 and a similar doctrine appears to be envisaged by AG Kokott. The French and Belgian principles of laïcité (considered by AG Kokott to extend to private employment)75 would seem under this approach to constitute a relevant factor, presumably because the headscarf runs counter to public policy,76 and may be considered incongruous at work in a way that it might not, for example, in the UK where, with its Established Church, secularism is not a principle (officially at least) which shapes public policy. Thus, restrictions on religious dress, which might be considered appropriate and necessary in private employment in France, might not be so considered in the rather different context of the UK.77 6. CONCLUSION Achbita and Bougnaoui before the CJEU have brought into the public eye the issue of manifestation of religion at work (and specifically through dress) in the same way as did Eweida and Ors before the ECtHR in 2013, allowing an opportunity for similar issues of belief and manifestation, choice and restraint, and the limits of the employer’s discretion, to be considered. On this occasion, as the dress in question was the Muslim headscarf rather than the Christian cross, the cultural challenges of religious minorities within Western society have also come into sharp relief. As AG Kokott put it in the introduction to her Opinion: Ultimately, the legal issues surrounding the Islamic headscarf are symbolic of the more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities.78 This may somewhat overstate the significance of the particular issues in Achbita and Bougnaoui, restricted as they are to customer contact within a workplace forum. However, if fundamental questions about cultural integration have truly been raised, albeit on the small stage, then it would seem that the Court has answered this point, at least in a qualified way, with a greater emphasis on cultural and religious assimilation as opposed to toleration of difference and diversity. Thus, employers who choose as a general policy to present a neutral image to customers, within certain constraints such as national public policy, may apparently do so—employees who will not or cannot conform may work invisibly in the back office (where this is possible) or failing that are liable to be dismissed. Those who value the toleration of diversity at work may well be disappointed by this development; so too may those employees who feel an obligation to dress in a particular way at work but who, when opposed by employers, may in future find themselves facing a very difficult dilemma. Footnotes 1 See generally D. McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Oxford: Hart Publishing, 2006) and E. Howard, Law and the Wearing of Religious Symbols (Abingdon: Routledge, 2012). 2 App nos 48420/10, 59842/10, 51671/10 and 36516/10, judgment of 15 January 2013. 3 Under Article 9(ii). 4 Eweida and Ors (n.2), para 94. For a critical analysis of this judgment, see I. Leigh and A. Hambler, ‘Religious Symbols, Conscience and the Rights of Others’ (2014) 3 Oxford Journal of Law and Religion 2. 5 Ibid. 6 Dahlab v Switzerland App no 42393/98, judgment of 15 February 2001, p 13. 7 App no 64846/11, judgment of 26 November 2015. 8 Ibid., para 62 (‘une manifestation ostentatoire de sa religion’). 9 Ibid., para 64. 10 Case C-157/15, judgment of 14 March 2017. 11 Case C-188/15, judgment of 14 March 2017. 12 Achbita (n.10), para 21. 13 Bougnaoui (n.11) AG Opinion of 13 July 2016, para 31. 14 Bougnaoui (n.11), para 14. 15 Ibid. 16 Ibid. 17 Ibid., para 19. 18 Bougnaoui AG (n.13), para 85. 19 Article 10(1) (Freedom of thought, conscience and religion). 20 Achbita (n.10), AG Opinion of 31 May 2016, para 110. 21 Ibid., para 116. 22 Bougnaoui AG (n.13), para 87. 23 Ibid., para 118. 24 Ibid., para 33. 25 Ibid., para 73. 26 Ibid. 27 Achbita AG (n.20), para 43. 28 Ibid., para 44. 29 Ibid., para 45. 30 Ibid., para 53. 31 Bougnaoui AG (n.13), para 88. 32 Ibid., para 96. 33 Ibid., para 98. 34 Ibid., para 99, although in the UK in these circumstances the right to wear a turban is prioritised over health and safety concerns, at least on construction sites, under the Employment Act 1989 s 11. 35 Achbita AG (n.20), para 108. 36 Ibid., para 57. 37 Ibid., para 84. 38 Ibid., para 141. 39 Bougnaoui AG (n.13), para 110. 40 Achbita (n.10), para 30. 41 Ibid., para 37. 42 Ibid., para 38. 43 Ibid., para 43. Perhaps conscious that this might be construed as mandating a form of ‘reasonable accommodation’, the court qualified its comments by making clear that any obligations would fall short of the employer ‘being required to take on an additional burden’ (although quite what a ‘burden’ might mean in this context is unclear). 44 Bougnaoui (n.11), para 40. 45 Ibid., para 32. 46 Ibid., para 33. 47 Ibid., para 34. 48 G. Moens, ‘The Action–Belief dichotomy and freedom of religion’ (1989) 12 Sydney Law Review 195. 49 See, for example, the remarks of Lord Justice Sedley in Eweida v British Airways [2010] EWCA Civ. 80, [2010] IRLR 322: ‘[T]he same definition is used for all the listed forms of indirect discrimination…all of these apart from religion or belief are objective characteristics of individuals; religion and belief alone are matters of choice’ [40]. 50 See the discussion in A. Hambler, Religious Expression in the Workplace and the Contested Role of Law (Abdingdon: Routledge, 2015) 63–7. 51 See generally L. Vickers, ‘Religious Discrimination in the Workplace: An Emerging Hierarchy?’ (2010) 12 Ecclesiastical Law Journal 280. This view that religion should have reduced protection as a characteristic has some advocates such as McColgan and Pitt: see A. McColgan, ‘Class Wars? Religion and (In)equality in the Workplace’ (2009) 38 ILJ 1 and G. Pitt, ‘Religion or Belief: Aiming at the Right Target?’ in H. Meenan (ed), Equality Law in an Enlarged European Union (Cambridge: Cambridge University Press, 2007) 202–30. 52 See R. Ahdar and I. Leigh, Religious Freedom in the Liberal State, 2nd edn (Oxford: Oxford University Press, 2013) 46–8. 53 J. Childress, ‘Appeals to Conscience’ (1979) 89 Ethics 315. 54 See also on this point, S. Leader, ‘Freedom and Futures: Personal Priorities, Institutional Demands and Freedom of Religion’ (2007) 70 MLR 713. 55 See J. Noonan, ‘How Sincere Do You Have to Be to Be Religious?’ [1988] University of Illinois Law Review 713 and W. Sadurski, Moral Pluralism and Legal Neutrality (The Hague: Kluwer, 1990) 174. 56 Bougnaoui AG (n.13) para 73. 57 In some religions, there is a specific mandate to evangelise others and many take that to mean wherever one is situated: see, for Christians, Matthew 28: 19–20 and, for Muslims, Quran 16: 125. 58 The ECtHR has for example delineated a distinction between ‘bearing Christian witness’ (which is ‘true evangelism’) and ‘improper proselytism’; see Kokkinakis v Greece, App no 14307/88, judgment of 25 May 1993, para 48. 59 Although some argue for high levels of toleration: see, for example, T. Berg, ‘Religious Speech in the Workplace: Harassment or Protected Speech?’ (1998–1999) 22 Harvard Journal of Law and Public Policy 959. 60 Achbita AG (n.20), para 52. 61 Ibid., para 49. 62 Except perhaps for advertising charitable enterprises, which is in any case outside of the likely scope of political and philosophical belief as a category. 63 Achbita AG (n.20), para 38. 64 See, for a nuanced discussion of secularism in this context, I. Leigh and R. Ahdar, ‘Post-Secularism and the European Court of Human Rights (or How God Never Really Went Away)’ (2012) 75 MLR 1065. 65 For example on the grounds of race, see Centrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV [2008] EUECJ C-54/07, [2008] ICR 1390. 66 Eweida and Ors (n.2), para 95. 67 Achbita AG (n.20), para 127. Interestingly, the CJEU did not make any reference to the point in the two judgments. 68 See Boychuck v Symons [1977] IRLR 395, where an employee was dismissed for wearing the (then) very indiscreet slogan ‘Lesbians Ignite’ on a small lapel badge. An example from the USA is Wilson v US West Communications, 58 F.3d 1337 (8th Cir. 1995), where a Roman Catholic challenged a ban by her employer on the wearing of a graphic image of an aborted foetus also on a small lapel badge. 69 Bougnaoui AG (n.13), para 130. 70 Perhaps to avoid an explicit break with some of the previous decisions on the headscarf such as Dahlab (n.6). 71 Achbita AG (n.20), para 49 (original emphasis). 72 Larissis and others v Greece App nos 140/1996/759/958–960, judgment of 24 February 1998. 73 As in Dahlab (n.6), para 13. 74 See, for example, T. Lewis, ‘What Not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’ (2007) 56 International and Comparative Law Quarterly 395. 75 Achbita AG (n.20), para 125. 76 See M. Hunter-Henin, ‘Why the French Don’t Like the Burqa: Laïcité, National Identity and Religious Freedom’ (2012) 61 International Comparative Law Quarterly 613. 77 And indeed the UK Government has sought to offer reassurance that these rulings are unlikely to affect the legal position in the UK: ‘We want to be absolutely clear to all concerned that the Equality Act remains unchanged, as do the rights of women and religious employees, which we will continue to protect’. HC Deb 15 March 2017, vol 623, col 415 (Caroline Dinenage MP, Minister for Women and Equalities). For further discussion, see F. Cranmer, ‘Urgent Commons Question on CJEU Rulings in Achbita and Bougnaoui’, Law & Religion UK, 15 March 2017, http://www.lawandreligionuk.com/2017/03/15/urgent-commons-question-on-cjeu-rulings-in-achbita-and-bougnaoui/ (date last accessed 10 May 2017). 78 Achbita AG (n.20), para 3. © Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Industrial Law Journal Oxford University Press

Neutrality and Workplace Restrictions on Headscarves and Religious Dress: Lessons from Achbita and Bougnaoui

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Abstract

1. INTRODUCTION Bans on the wearing of religious symbols, and particularly the Islamic headscarf, in the European public square have been controversial and have been challenged on several occasions on human rights grounds (primarily under Article 9 (Freedom of thought, conscience and religion) of the European Convention on Human Rights (ECHR)).1 However, restrictions on religious dress in the workplace have been fully considered only recently, most significantly before the European Court of Human Rights (ECtHR) in Eweida and Ors v United Kingdom.2 In its judgment, the Court concluded that the right to manifest religion through dress could be restricted,3 in situations where there was a health and safety concern but not in situations where customer image was the justification for any restrictions—regarding the latter, the religious right carried more weight than the employer’s desire for uniformity.4 However, the judges did consider that the fact that the item of dress in question in Eweida, a small cross on a chain, was ‘discreet’ was pertinent to its decision.5 Whether the Islamic headscarf, for example, once described by the ECtHR as ‘a powerful external symbol’,6 could be considered ‘discreet’, and how much discretion actually mattered when weighed in the overall balance, were left as open questions. These questions were in turn partially answered in Ebrahimian v France,7 where the ECtHR agreed that a public employer in France could rely on the national principle of laïcité to justify a headscarf ban for a social worker, not least due to the ‘ostentatious’ character of the headscarf.8 However, this judgment must be qualified as it applied in a public-sector employment context and, more specifically, in healthcare, where it was considered particularly important that patients should not be exposed to religious manifestation by employees to avoid doubts about their impartiality.9 It is in this legal context that the Court of Justice of the EU (CJEU) has, for the first time, addressed similar questions of the legality of workplace bans on the Islamic headscarf in its parallel decisions in Achbita and Anor v G4S Solutions NV10 and Bougnaoui and Association de défense des droits de l’homme (ADDH) v Micropole SA,11 handing down its preliminary rulings on 14 March 2017. In Achbita, the legal issues were primarily concerned with Article 2(2) of Directive 2000/78, the relevant part of which reads (in context): 1. For the purposes of this Directive, the “principle of equal treatment” shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless: (i) that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, … By contrast, in Bougnaoui, the referring court cited Article 4(1) of Directive 2000/78, which reads: Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. The eventual decisions of the CJEU, to uphold the headscarf ban in Achbita but to overturn it in Bougnaoui, appear, prima facie, to be somewhat in conflict. Handed down on the same day, the Court did however take some pains to ensure that the decisions were in fact mutually compatible—they were distinguished partly by the fact that the referring courts asked different questions, thus engaging separate articles of the relevant directive, and partly by the presence in Achbita of a discernible uniform rule capable of consistent application in contrast to an apparently ad hoc instruction on dress in Bougnaoui. However, although the decisions do not directly disagree, there is certainly a measure of conflict between the analyses in the respective Opinions of the two Advocates General which informed the judgments, reflecting, inter alia, some of the debates about the nature and importance of religion as a protected characteristic, and the extent to which its manifestation can and should be guaranteed in the workplace. 2. THE FACTS OF THE CASES Achbita concerned a Muslim employee who worked as a receptionist for the security firm G4S Secure Solutions in Belgium. G4S operated a prohibition on the wearing of religious, political or philosophical symbols while on duty at work. Ms Achbita worked for three years for the company in accordance with the religious neutrality required by G4S. However, in May 2006, she announced that she would be wearing an Islamic headscarf for religious reasons on her return to work following a period of sick leave. She was dismissed as a result, with severance pay, on 12 June 2006. With the support of the Belgian Centre for Equal Opportunities and Combating Racism, she brought an action before the Belgian courts for damages from G4S for wrongful dismissal or, in the alternative, damages for infringing the law combating discrimination. Her action was unsuccessful before the court of first instance and on initial appeal. On further appeal, the Belgian Court of Cassation referred the question to the CJEU of whether or not Article 2(2) of Directive 2000/78 should be interpreted to mean 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 at the workplace?’12 The second case, Bougnaoui, involved a Muslim design engineer who worked for the company Micropole SA in France. On 15 June 2009, she was summoned to a disciplinary meeting and subsequently dismissed on 22 June. The letter of dismissal explained that a client, Groupama, had objected to Ms Bougnaoui wearing ‘a veil’ (understood by the Advocate General to mean a headscarf or hijab)13 while working on their premises as this had ‘upset’ a number of employees.14 The letter reminded Ms Bougnaoui that when she had first been recruited by Micropole she had been advised that she would not always be able to wear the veil in front of clients as ‘discretion’ would be required in giving expression to ‘personal preferences’.15 When formally asked to abide by the company’s ‘principle of necessary neutrality’ and agree not to wear the veil, Ms Bougnaoui refused to do so. As a result, the letter concluded, she was being dismissed, albeit with regret as she had displayed ‘professional competence’ and ‘potential’.16 In November 2009, Ms Bougnaoui challenged her dismissal at a French Labour Tribunal, claiming it was a discriminatory act based on her religious beliefs. The tribunal rejected her application, and this was upheld by the Court of Appeal in Paris. On further appeal, the Court of Cassation referred the question to the CJEU: Must Article 4(1) of [Directive 2000/78] 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?17 3. THE OPINIONS OF THE ADVOCATES GENERAL A. Religion and Manifestation A foundational question for both Advocates General was whether or not the prohibitions under Directive 2000/78 on discrimination applied not only to religion or belief itself but also to the manifestation of that religion or belief.18 Advocate General Kokott (re. Achbita) was somewhat equivocal. While recognising the importance of external manifestation of ‘religious practice’ to an individual’s identity (and also recognised under the Charter of Fundamental Rights of the European Union),19 nevertheless she observed that employees should not expect to observe all their ‘religious customs’20 in the workplace: While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion in the workplace, be this in relation to religious practices, religiously motivated behaviour or (as in the present case) his clothing.21 In her Opinion on Bougnaoui, AG Sharpston, on the other hand, observed that Article 9 ECHR and Article 10 of the Charter made it clear that the freedom to manifest religion is ‘intrinsic’ to freedom of religion and belief itself.22 Although religious observance may vary in form and intensity over time and according to individual conviction, such that some aspects of manifestation may be negotiable, nevertheless (in sharp contrast to AG Kokott) ‘it would be entirely wrong to suppose that, whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not’.23 She also observed that, although some religious symbols may be described as discreet, others are clearly not, such as the Sikh turban—but this does not make any difference to the perceived obligation to wear them.24 In outlining her understanding of religious manifestation, AG Sharpston also delineated a distinction between freedom to manifest religion and ‘proselytising on behalf of one’s religion’.25 The former requires delicate balancing against the employer’s right to conduct his business. The latter, however, ‘has no place in the work context’ and may be legitimately curtailed by an employer so that employee’s time is used for the purpose it has been ‘bought’ and to ensure ‘harmonious working conditions’ among the workforce.26 Religious dress, for the avoidance of doubt, fell within the first category. B. Direct Discrimination These different conceptions of the significance of the manifestation of religion are arguably central to the contrasting views on the applicability of direct discrimination expressed in the two opinions. In Achbita, on the question of direct discrimination, AG Kokott conceded that a prima facie case could be established on the basis that the G4S operated a rule specifically targeted at preventing the wearing of ‘religious’ symbols, and so the less favourable treatment suffered by Ms Achbita could be directly linked to religion.27 Furthermore, she noted that the relevant directive had been broadly construed under European case law to find direct discrimination in circumstances where a measure was ‘inseparably linked to the relevant reason for the difference of treatment’.28 However, previous case law could be distinguished from the given case because it concerned ‘individuals’ immutable physical features or personal characteristics—such as gender, age or sexual orientation—rather than with modes of conduct based on a subjective decision or conviction, such as the wearing or not of a head covering at issue here’.29 ‘On closer analysis’, the Advocate General noted that there was no discrimination between religions as the ban applied to all religious symbols without distinction, and the rule applied not only to religious symbols but also to the visible display of political or philosophical beliefs, including atheism (such that it was neutral from the perspective of religion and ideology). On this basis, the only difference of treatment was between ‘employees who wish to give active expression to a particular belief…and those who do not feel the same compulsion’.30 This in itself could not constitute less favourable treatment that is directly and specifically linked to religion. In Bougnaoui, on the other hand, AG Sharpston concluded that Ms Bougnaoui was treated less favourably on the ground of her religion than someone else in a comparable situation would have been treated (such as a design engineer who had chosen not to manifest his or her belief by wearing a particular dress).31 Her dismissal should therefore be considered to be direct discrimination under Article 2(2)(a) of Direct 2000/78, unless one of the derogations under that directive applied. C. Occupational Requirements Following on from her analysis of direct discrimination, AG Sharpston noted that the only likely derogation was the derogation under Article 4 which permits an otherwise discriminatory difference of treatment only in circumstances where to do so is in pursuit of a genuine and determining occupational requirement. In her view, this should be interpreted to limit the derogation ‘to matters which are absolutely necessary in order to undertake the professional activity in question’,32 taking into account both the activity and the context in which it takes place.33 The ‘obvious’ example of this would be in the area of health and safety at work, where it would be legitimate, for example, to exclude a Sikh turban-wearer who refused to wear protective headgear.34 However, AG Sharpston did not think that the freedom under Article 16 of the Charter to conduct a business could activate the Article 4(1) derogation in the circumstances like these where customer relations rather than the ability to do the job were at issue. In Achbita, AG Kokott similarly considered the possibility that an Article 4 occupational requirement might apply, should the Court disagree with her conclusion on direct discrimination. Taking a rather different view to that of AG Sharpston, she emphasised the discretion of an employer (under Article 16 of the Charter) to pursue its business and, in view of this, argued that a dress code may be imposed, in particular in roles where there is frequent customer contact (as opposed to back-office jobs, which might be suitable instead for employees such as Ms Achbita).35 D. Indirect Discrimination In Achbita, having rejected the possibility of direct discrimination, the Advocate General did also consider whether or not the rule prohibiting religious symbols might alternatively constitute indirect discrimination based on religion. Unsurprisingly, she identified that in principle this might be so,36 but that in this case it could be justified nonetheless by a legitimate aim of the employer, such as the enforcement of a policy of religious and ideological neutrality where that policy could be regarded as a genuine and determining occupational requirement (within the meaning of Article 4(1) of Directive 2000/78).37 Whether it was proportionate to apply this rule to employees such as Ms Achbita was largely dependent on the discretion of national authorities. Ultimately, therefore, it was for the Belgian courts to strike a fair balance between the conflicting interests in the present case, taking into account all the relevant circumstances including: the visibility and conspicuousness of the religious symbol; the nature of the employee’s activity (including seniority); the context of the role, including the extent to which he or she has contact with external individuals; as well as the national identity of the Member State.38 In Bougnaoui, AG Sharpston also analysed the potential application of indirect discrimination. She did this on the assumption that a theoretical rule preventing the wearing of religious dress and symbols also extended to ‘any item of apparel which reflects the wearer’s individuality in any way’ (such as a college tie or a football supporter’s T-shirt).39 Such a rule would be indirectly discriminatory on the grounds of religion and belief and would require objective justification as legitimate and necessary in pursuit of a legitimate aim. An employer’s business interest would be likely to constitute a legitimate aim but, to determine whether or not the means to achieve this aim are appropriate and necessary, a process of determining proportionality would be required which would normally involve a concerted effort by the relevant national courts to balance the employer’s right to run his business with the employee’s right to manifest religion. 4. THE DECISIONS OF THE COURT In Achbita, the Court itself agreed, on the central question, with AG Kokott: In the present case, the internal rule at issue in the main proceedings refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction. The rule must, therefore, be regarded as treating all workers of the undertaking in the same way....40 As no evidence had been presented to indicate that the rule had been applied any differently to Ms Achbita, then there was no direct discrimination based on religion or belief for the purposes of Article 2(2)(a) of Directive 2000/78. It did however recognise that such a rule had the potential to constitute unlawful indirect discrimination. Although this was primarily a matter for national courts, the Court took it upon itself to issue some guidance for the referring court on where prima facie indirect discrimination may be justified. In terms of a legitimate aim, it noted that ‘the desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate’,41 in particular (but presumably not exclusively) when such an aim related to workers who have contact with customers. Such an aim is legitimate because it is in keeping with an employer’s freedom to conduct a business, as recognised in Article 16 of the Charter of Fundamental Rights.42 The court went on to suggest that such an inference can also be made from the European Court of Human Rights decision in Eweida and was therefore not incompatible with the ECHR. As regards the appropriateness of the kind of rule forbidding religious dress and symbols, it should be considered appropriate in pursuit of a policy of neutrality, assuming that the policy is genuine and consistently and systematically applied. It would be for the national court to determine whether or not G4S’s policy on religious, philosophical or political dress conformed to this standard. To decide whether or not the prohibition was necessary, the national court would need to identify whether or not it applied only to G4S workers who interacted with customers. If so, the prohibition must be considered strictly necessary to achieve the aim pursued. Equally, it would be a requirement to ascertain whether or not it would have been possible for G4S to offer Ms Achbita, instead of dismissing her, a role without visual contact with customers.43 In Bougnaoui, the Court itself followed the analysis of the Advocate General in its disposal of the actual issue which had been referred to it. It agreed that direct discrimination can engage the manifestation of religion as well as core belief and that the term ‘religion’ at Article 1 of Directive 2000/78 should be interpreted to be inclusive of both. It also found that if there was differential treatment amounting to direct discrimination in the case of Bougnaoui, then this could not be justified as an occupational requirement as such a requirement must be ‘objectively dictated by the nature of the occupational activities concerned or of the context in which they are carried out’ and cannot ‘cover subjective considerations, such as the willingness of the employer to take account of the particular wishes of the customer’.44 The Court was however rather less sure than AG Sharpston that the situation of Ms Bougnaoui was one of direct as opposed to indirect discrimination, concluding that this was unclear from the order for reference. If her dismissal had been due to a ‘rule…prohibiting the wearing of any visible sign of political, philosophical or religious beliefs’ (echoing the formula in Achbita), which put particular religious adherents at a disadvantage, then this would amount to indirect discrimination,45 which might then be justified by a legitimate aim, such as projecting a neutral image to customers (agreeing with Achbita), and if the means of achieving that aim were appropriate and necessary.46 However, if no such rule existed, and the employer was singling out the headscarf in response to customer pressure, then direct discrimination is likely to be engaged.47 5. ANALYSIS A. Religion and Manifestation Although the Court in both Achbita and Bougnaoui accepted with limited discussion that the definition of religion should encompass the manifestation of religion, the more detailed consideration of this issue by the Advocate Generals is worthy of comment. In Achbita, AG Kokott made frequent reference to notions of self-restraint and choice in matters of religion to inform her opinion. The implication is that religious employees have discretion over when and where they manifest their beliefs. The basis for this is the well-known ‘belief–action’ distinction that is particularly applied to freedom of religion and belief as a human right (for example under the ECHR) and is here extended to apply in a discrimination law context.48 Someone may believe something and this is entirely inviolate (in the so-called forum internum) whereas acting on that belief is more contested (and takes place in the forum externum). Such a distinction is more difficult to apply to those characteristics that are said to be immutable such as sex, race and sexual orientation. The problem with the belief–action distinction is that it can be mis-applied to suggest that only the forum internum is truly core to an individual’s religion—the way it is expressed is very much secondary. Indeed, it is often seen as a matter of individual choice whether to engage in particular forms of manifestation.49 Thus, it is not unreasonable to expect individuals to exercise restraint in the way they dress or behave. This can lead to a conclusion such as that suggested by AG Kokott that, whereas people cannot leave their skin colour or sex at the door, they can leave their religious practice there. However, this analysis is problematic.50 Not only can it lead to religion and belief becoming a ‘second class citizen’ as far as equality and non-discrimination is concerned,51 but it neglects the importance of conscience. Indeed, what might appear to a third party to be the exercise of choice can be recast as a response under compulsion to the claims of conscience, where conscience is informed by the perceived obligation to obey God.52 If this is the case then to leave something ‘at the door’ which is required by conscience becomes a much more painful and sacrificial process than the metaphor implies.53 However, as AG Sharpston perceptively notes, conscience may not inform all forms of religious manifestation for all religious actors, and religious conviction can vary over time.54 This is why she is correct to argue that balancing employers’ and religious rights proportionately may involve some sensitive negotiation between the two parties. Indeed, it may be argued that the more an individual feels compelled by conscience to manifest his or her religion in a particular way (and one factor in determining this is individual sincerity),55 the stronger must be the employer’s rationale for restrictions. As Sharpston’s analysis shows sensitivity to the nuances of religious practice which is absent from the other analyses, it is somewhat jarring to read her observations about proselytism. Not only are these observations of very limited relevance to the question at hand, but they also have no obvious basis in law. What she appears to do is to create a new dichotomy between manifestations of religion, which may be exercised with qualification in the workplace, and proselytism ‘which has no place there’.56 Even if proselytism, which is capable of wide definition, is taken on its plain meaning as seeking to convert others to a particular religion or religious view, then it is still surely a bona fide manifestation of religion rather than some undesirable third category.57 There may be some forms of proselytism which are illegitimate, perhaps due to the deliberate and cynical targeting of vulnerable individuals, but the activity itself, exercised in good faith, must surely be regarded as legitimate.58 This is not to say it should not be restricted at work,59 but the better course would be to look to the employer’s legitimate aim in imposing restrictions (proportionately) rather than an outright denial of the status of the activity as manifestation of religion per se. B. Direct Discrimination In both rulings, to avoid finding what would otherwise be directly discriminatory differential treatment, the CJEU followed AG Kokott’s acceptance that a general rule could be applied seemingly selectively and yet still apparently retain its neutrality. Thus, an employer may ban religious symbols and dress as long as it also bans the wearing of political and philosophical slogans or symbols. AG Sharpston, on the other hand, had suggested that to be neutral such a rule would need to forbid the wearing of any item of attire designed to be reflective of personal identity. It is submitted that this is the correct approach. While it is possible that employers might be acting in good faith by imposing a general restriction on religious, political and philosophical ‘attire’, it is surely clear that a less scrupulous employer might employ this wider category as a fig leaf for its true intention which is to single out and ban religious identity at work. Indeed, the point is obvious in considering how exactly someone might ‘wear’ his or her political or philosophical beliefs—the only real example which AG Kokott could offer was the wearing of a slogan-bearing pin, T-shirt or ‘headwear’60 (an example which was also extended to religious slogans).61 Apart from the obvious empirical observation that few people actually seek to (regularly) wear slogan-bearing clothing in the workplace,62 the Advocate General has surely fallen into category error on this point. Religious dress or symbols, which people sincerely feel mandated to wear either through personal conviction or because of a perceived religious obligation, are entirely different to the wearing by personal choice of a T-shirt with a slogan. There is no evidence that anyone could reasonably feel under a duty of conscience to the latter garment (or badge bearing the same or similar words) in the workplace. Indeed the two can be distinguished on another level—the T-shirts crudely (and conspicuously) articulate religion or belief in a way that discreet (in its wider meaning) religious symbols or dress do not. Indeed, it is a great pity that AG Kokott, having rightly attached importance to the fact that Achbita had a ‘sincere belief’ that she should wear the headscarf, missed this equally crucial point.63 C. Legitimate Aim Both decisions concern themselves to a great extent with the notion of a legitimate aim either for the purposes of identifying an occupational requirement or in response to a possible indirect discrimination claim. In Achbita, the right of an employer to argue a policy of religious (and political) neutrality was considered sufficiently weighty in principle to constitute a legitimate aim. The Court in Bougnaoui (and in this respect diverging from AG Sharpston’s opinion) agreed while essentially arguing that such policy-making cannot be ad hoc (or subjective) in response to a particular customer demand. The difficulty with ‘neutrality’ is that it may be a synonym, in this context, for secularism; some versions of secularism are intrinsically hostile to, rather than symbiotic with, religion and so it is difficult to see it necessarily as a neutral creed.64 However, even if a truly neutral version of secularism can be identified (and it is highly doubtful that the French and Belgian versions of secularism would qualify), it is difficult to see why an employer would have a pressing need to present this beyond a simple preference to convey a uniform image to its customers. It is possible that such a need might arise in places where there has been a history of sectarian conflict, such as Northern Ireland, but it is difficult to see the same need elsewhere. It would seem rather that an employer is simply responding to the perceived tastes of its customers and these tastes may be motivated by rather unworthy aims such as a dislike of conspicuous Muslims (or other groups). It seems odd that the Court would be affirming an employer’s right to indulge the prejudices of its customers (as long as that indulgence is codified into company policy), in a way which it would not be permitted to do in other circumstances.65 It is this aspect of the judgments which appears also to be out of step with the ECtHR decision in Eweida and Ors where the employer’s desire to present a uniform image was considered intrinsically less weighty than the employee’s desire to wear a religious symbol, not least because there was no ‘real encroachment on the interests of others’.66 It is similarly difficult to identify any real encroachment on the interests of others in Ms Achbita’s decision to wear a headscarf at work. The ECtHR did of course qualify its analysis to reflect the fact that Eweida’s religious symbol was ‘discreet’ which allowed the AG Kokott an opportunity to distinguish her Opinion from that decision (albeit that she preferred her own formula of ‘size and conspicuousness’).67 The precise meaning of ‘discreet’ is, however, worthy of consideration. The word is often synonymous with small, but this need not necessarily follow. Even small symbols can be very indiscreet, depending on what is depicted on them.68 Equally, items of dress such as a headscarf or turban might conceivably be described as ‘discreet’ despite their relative size, if they are plain or in conformity with an organisational uniform. Interestingly, and surely correctly, AG Sharpston expressly distinguished the full face veil from the headscarf in her opinion. Certainly, it would be difficult to argue that the former can be ‘discreet’ or ‘inconspicuous’, given, as Sharpston correctly identified, the incongruity of face covering and mores of face-to-face communication in Western society.69 However, even if the Court in Eweida used the term ‘discreet’ to mean small,70 AG Sharpston was surely correct to argue that this makes little difference to the wearer. Discreet, with that meaning, appears to imply some available self-restraint which the religious actor might or might not employ. The point is well made that the religious actor may not feel he or she has such a choice. This is likely to be particularly true for adherents of certain religions, such as Islam or Sikhism, where many feel mandated to wear dress which some are likely to consider less discreet than, for example, a Christian cross worn as jewellery. This may also suggest that a dress rule apparently neutrally applied may create a greater burden for some religious employees than others and this naturally calls into question the assertion by AG Kokott that such a rule creates ‘no discrimination between religions’.71 D. Proportionality The Court itself did not provide detailed guidance for national courts on approaching the questions of the appropriateness and necessity of applying a legitimate aim; however, in Achbita, AG Kokott set out four key reference points, not all of which appear easy to justify. The first of these (the size and conspicuousness of the symbol) has already been considered. Of the other three elements, the nature of the activity (namely the customer-facing nature of the role) appears in keeping with the logic of the Opinion (but becomes less compelling if ‘image’ is treated, as it is argued here that it should be, as an inadequate reason for imposing restrictions, unless the image is particularly jarring). The ‘context’ is more troubling in terms of the suggestion that more senior employees might be expected to show greater restraint. Employment position does not affect a sense of religious obligation so to fetter senior employees where junior employees would not be so fettered is to impose a greater burden on them. Indeed, a logical consequence of such reasoning would be to permit the restriction of employees from some (chiefly minority) religious backgrounds (such as Muslim women and Sikh men) into junior roles, at the expense of equality of opportunity in the workplace. This would appear to require a compelling justification. Whereas the ECtHR has identified in the past that seniority might be a reason to restrict proselytising activities involving more junior personnel (in a military context) due to the undue pressure they might exert because of their positions,72 it is difficult to see how that logic could apply to the wearing of religious symbols unless they are assumed to have a proselytising character,73 but this possibility appears (rightly) not to have been entertained by the CJEU. If there is any other basis for imposing greater restrictions on senior rather than junior employees (however difficult this may be to envisage) it was not articulated by AG Kokkott. Finally, the relevance of national context may act to partially reassure those in the UK who have been alarmed by these decisions. Deference to national context has long been a principle of judicial interpretation for the ECtHR (not least in its treatment of restrictions on religious dress)74 and a similar doctrine appears to be envisaged by AG Kokott. The French and Belgian principles of laïcité (considered by AG Kokott to extend to private employment)75 would seem under this approach to constitute a relevant factor, presumably because the headscarf runs counter to public policy,76 and may be considered incongruous at work in a way that it might not, for example, in the UK where, with its Established Church, secularism is not a principle (officially at least) which shapes public policy. Thus, restrictions on religious dress, which might be considered appropriate and necessary in private employment in France, might not be so considered in the rather different context of the UK.77 6. CONCLUSION Achbita and Bougnaoui before the CJEU have brought into the public eye the issue of manifestation of religion at work (and specifically through dress) in the same way as did Eweida and Ors before the ECtHR in 2013, allowing an opportunity for similar issues of belief and manifestation, choice and restraint, and the limits of the employer’s discretion, to be considered. On this occasion, as the dress in question was the Muslim headscarf rather than the Christian cross, the cultural challenges of religious minorities within Western society have also come into sharp relief. As AG Kokott put it in the introduction to her Opinion: Ultimately, the legal issues surrounding the Islamic headscarf are symbolic of the more fundamental question of how much difference and diversity an open and pluralistic European society must tolerate within its borders and, conversely, how much assimilation it is permitted to require from certain minorities.78 This may somewhat overstate the significance of the particular issues in Achbita and Bougnaoui, restricted as they are to customer contact within a workplace forum. However, if fundamental questions about cultural integration have truly been raised, albeit on the small stage, then it would seem that the Court has answered this point, at least in a qualified way, with a greater emphasis on cultural and religious assimilation as opposed to toleration of difference and diversity. Thus, employers who choose as a general policy to present a neutral image to customers, within certain constraints such as national public policy, may apparently do so—employees who will not or cannot conform may work invisibly in the back office (where this is possible) or failing that are liable to be dismissed. Those who value the toleration of diversity at work may well be disappointed by this development; so too may those employees who feel an obligation to dress in a particular way at work but who, when opposed by employers, may in future find themselves facing a very difficult dilemma. Footnotes 1 See generally D. McGoldrick, Human Rights and Religion: The Islamic Headscarf Debate in Europe (Oxford: Hart Publishing, 2006) and E. Howard, Law and the Wearing of Religious Symbols (Abingdon: Routledge, 2012). 2 App nos 48420/10, 59842/10, 51671/10 and 36516/10, judgment of 15 January 2013. 3 Under Article 9(ii). 4 Eweida and Ors (n.2), para 94. For a critical analysis of this judgment, see I. Leigh and A. Hambler, ‘Religious Symbols, Conscience and the Rights of Others’ (2014) 3 Oxford Journal of Law and Religion 2. 5 Ibid. 6 Dahlab v Switzerland App no 42393/98, judgment of 15 February 2001, p 13. 7 App no 64846/11, judgment of 26 November 2015. 8 Ibid., para 62 (‘une manifestation ostentatoire de sa religion’). 9 Ibid., para 64. 10 Case C-157/15, judgment of 14 March 2017. 11 Case C-188/15, judgment of 14 March 2017. 12 Achbita (n.10), para 21. 13 Bougnaoui (n.11) AG Opinion of 13 July 2016, para 31. 14 Bougnaoui (n.11), para 14. 15 Ibid. 16 Ibid. 17 Ibid., para 19. 18 Bougnaoui AG (n.13), para 85. 19 Article 10(1) (Freedom of thought, conscience and religion). 20 Achbita (n.10), AG Opinion of 31 May 2016, para 110. 21 Ibid., para 116. 22 Bougnaoui AG (n.13), para 87. 23 Ibid., para 118. 24 Ibid., para 33. 25 Ibid., para 73. 26 Ibid. 27 Achbita AG (n.20), para 43. 28 Ibid., para 44. 29 Ibid., para 45. 30 Ibid., para 53. 31 Bougnaoui AG (n.13), para 88. 32 Ibid., para 96. 33 Ibid., para 98. 34 Ibid., para 99, although in the UK in these circumstances the right to wear a turban is prioritised over health and safety concerns, at least on construction sites, under the Employment Act 1989 s 11. 35 Achbita AG (n.20), para 108. 36 Ibid., para 57. 37 Ibid., para 84. 38 Ibid., para 141. 39 Bougnaoui AG (n.13), para 110. 40 Achbita (n.10), para 30. 41 Ibid., para 37. 42 Ibid., para 38. 43 Ibid., para 43. Perhaps conscious that this might be construed as mandating a form of ‘reasonable accommodation’, the court qualified its comments by making clear that any obligations would fall short of the employer ‘being required to take on an additional burden’ (although quite what a ‘burden’ might mean in this context is unclear). 44 Bougnaoui (n.11), para 40. 45 Ibid., para 32. 46 Ibid., para 33. 47 Ibid., para 34. 48 G. Moens, ‘The Action–Belief dichotomy and freedom of religion’ (1989) 12 Sydney Law Review 195. 49 See, for example, the remarks of Lord Justice Sedley in Eweida v British Airways [2010] EWCA Civ. 80, [2010] IRLR 322: ‘[T]he same definition is used for all the listed forms of indirect discrimination…all of these apart from religion or belief are objective characteristics of individuals; religion and belief alone are matters of choice’ [40]. 50 See the discussion in A. Hambler, Religious Expression in the Workplace and the Contested Role of Law (Abdingdon: Routledge, 2015) 63–7. 51 See generally L. Vickers, ‘Religious Discrimination in the Workplace: An Emerging Hierarchy?’ (2010) 12 Ecclesiastical Law Journal 280. This view that religion should have reduced protection as a characteristic has some advocates such as McColgan and Pitt: see A. McColgan, ‘Class Wars? Religion and (In)equality in the Workplace’ (2009) 38 ILJ 1 and G. Pitt, ‘Religion or Belief: Aiming at the Right Target?’ in H. Meenan (ed), Equality Law in an Enlarged European Union (Cambridge: Cambridge University Press, 2007) 202–30. 52 See R. Ahdar and I. Leigh, Religious Freedom in the Liberal State, 2nd edn (Oxford: Oxford University Press, 2013) 46–8. 53 J. Childress, ‘Appeals to Conscience’ (1979) 89 Ethics 315. 54 See also on this point, S. Leader, ‘Freedom and Futures: Personal Priorities, Institutional Demands and Freedom of Religion’ (2007) 70 MLR 713. 55 See J. Noonan, ‘How Sincere Do You Have to Be to Be Religious?’ [1988] University of Illinois Law Review 713 and W. Sadurski, Moral Pluralism and Legal Neutrality (The Hague: Kluwer, 1990) 174. 56 Bougnaoui AG (n.13) para 73. 57 In some religions, there is a specific mandate to evangelise others and many take that to mean wherever one is situated: see, for Christians, Matthew 28: 19–20 and, for Muslims, Quran 16: 125. 58 The ECtHR has for example delineated a distinction between ‘bearing Christian witness’ (which is ‘true evangelism’) and ‘improper proselytism’; see Kokkinakis v Greece, App no 14307/88, judgment of 25 May 1993, para 48. 59 Although some argue for high levels of toleration: see, for example, T. Berg, ‘Religious Speech in the Workplace: Harassment or Protected Speech?’ (1998–1999) 22 Harvard Journal of Law and Public Policy 959. 60 Achbita AG (n.20), para 52. 61 Ibid., para 49. 62 Except perhaps for advertising charitable enterprises, which is in any case outside of the likely scope of political and philosophical belief as a category. 63 Achbita AG (n.20), para 38. 64 See, for a nuanced discussion of secularism in this context, I. Leigh and R. Ahdar, ‘Post-Secularism and the European Court of Human Rights (or How God Never Really Went Away)’ (2012) 75 MLR 1065. 65 For example on the grounds of race, see Centrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV [2008] EUECJ C-54/07, [2008] ICR 1390. 66 Eweida and Ors (n.2), para 95. 67 Achbita AG (n.20), para 127. Interestingly, the CJEU did not make any reference to the point in the two judgments. 68 See Boychuck v Symons [1977] IRLR 395, where an employee was dismissed for wearing the (then) very indiscreet slogan ‘Lesbians Ignite’ on a small lapel badge. An example from the USA is Wilson v US West Communications, 58 F.3d 1337 (8th Cir. 1995), where a Roman Catholic challenged a ban by her employer on the wearing of a graphic image of an aborted foetus also on a small lapel badge. 69 Bougnaoui AG (n.13), para 130. 70 Perhaps to avoid an explicit break with some of the previous decisions on the headscarf such as Dahlab (n.6). 71 Achbita AG (n.20), para 49 (original emphasis). 72 Larissis and others v Greece App nos 140/1996/759/958–960, judgment of 24 February 1998. 73 As in Dahlab (n.6), para 13. 74 See, for example, T. Lewis, ‘What Not to Wear: Religious Rights, the European Court, and the Margin of Appreciation’ (2007) 56 International and Comparative Law Quarterly 395. 75 Achbita AG (n.20), para 125. 76 See M. Hunter-Henin, ‘Why the French Don’t Like the Burqa: Laïcité, National Identity and Religious Freedom’ (2012) 61 International Comparative Law Quarterly 613. 77 And indeed the UK Government has sought to offer reassurance that these rulings are unlikely to affect the legal position in the UK: ‘We want to be absolutely clear to all concerned that the Equality Act remains unchanged, as do the rights of women and religious employees, which we will continue to protect’. HC Deb 15 March 2017, vol 623, col 415 (Caroline Dinenage MP, Minister for Women and Equalities). For further discussion, see F. Cranmer, ‘Urgent Commons Question on CJEU Rulings in Achbita and Bougnaoui’, Law & Religion UK, 15 March 2017, http://www.lawandreligionuk.com/2017/03/15/urgent-commons-question-on-cjeu-rulings-in-achbita-and-bougnaoui/ (date last accessed 10 May 2017). 78 Achbita AG (n.20), para 3. © Industrial Law Society; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

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Industrial Law JournalOxford University Press

Published: Mar 1, 2018

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