Hijab ban amounts to direct discrimination

Tags: Race Discrimination, Employment Law, Employment Tribunal, Hijab

Despite efforts to encourage diversity in the workplace, employers can still get caught out by the equality legislation. This has been demonstrated by the recent decision in Bougnaoui and another v Micropole SA where a ban on an employee wearing her Islamic headscarf (hijab) was deemed to be direct discrimination. 

Ms Bougnaoui, a Muslim woman who worked for Micropole an operating company in France, was dismissed when she refused to comply with her employers request for the removal of her headscarf when in contact with customers. The request was made following a customer complaint. 

The court in the first instance, and upon appeal, held that the employers practice was not discriminatory as it was a “genuine and determining occupation requirement”. 

However, when the matter was referred to the Court of Justice of the European Union (CJEU) the Advocate General (AG) concluded that the employee’s dismissal for wearing an Islamic headscarf at work was directly discriminatory on grounds of religion or belief. It was clear that a non-Muslim employee would not have been treated in the same way.  

The AG added that discrimination would only be lawful, i.e. be based on an “occupational requirement”, when it was genuine and absolutely necessary. The example given was for health & safety reasons. 

Conclusion 

This decision highlights the need for employers to ensure that commercial needs are not put before the needs of employees who fall within the definition of having a ‘protected characteristic’ within the meaning of the Equality Act 2010. 

This is, of course, a European decision so its relevance may be debateable once the Brexit negotiations commence.  

Here at SCE we have a wealth of experience in dealing with similar issues If you need advice in managing a discrimination complaint please me on 0113 3 50 40 30 or at samira.cakali@scesolicitors.co.uk

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