The question of whether it is discriminatory to ask a Muslim woman not to wear a headscarf at work has been raised again in two European cases and is due to be decided by the European Court of Justice towards the end of this year. ECJ cases will continue to be binding on us until we have officially left the EU and so their decision may have an impact on the law of England and Wales.

The process in the ECJ is that the Advocate General considers the case first and issues an opinion. This is not binding on the ECJ, and the ECJ does not always agree with the Advocate General, but in many cases they do and so the Advocate General’s opinion is a good indicator of what the outcome of the case may be.

In one case, Micropole SA dismissed Ms Bougnaoui because she refused to comply with an instruction from her manager to remove her headscarf – the instruction was issued because of a complaint from a customer. The Advocate General has indicated that this dismissal may amount to direct discrimination on the grounds of religion.

However, in the other case, G4S Secure Solutions NV dismissed Ms Achbita because she continued to wear her headscarf in breach of their uniform policy which banned all employees from wearing any visible religious, political or philosophical symbols in the workplace. The Advocate General has indicated that uniform policy could be justified on the basis of G4S’s objective of religious and ideological neutrality and considered that “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.”

So why are they different?

An instruction from a manager to an employee to remove their headscarf may amount to direct discrimination because it is treatment that is aimed at one particular person and their religious belief. Direct discrimination cannot be justified – if you are found guilty of direct discrimination there is little you can do to defend yourself.

The existence of a dress code or uniform policy that includes a general ban on religious symbols is not direct discrimination on the grounds of religion because it is not aimed at one particular religious belief. However, it may be indirect discrimination because although it appears to be neutral, it could disadvantage staff of one particular religion. Indirect discrimination can be justified – if a court or tribunal concludes that your policy is discriminatory, you may be able to defend yourself on the basis that the policy is reasonably necessary to achieve legitimate aims for your workplace or business.

You may recall we have in the past considered two apparently similar cases of race discrimination which had different outcomes.

In the first case, there was a workplace policy that required staff to speak English to communicate with each other – this was said to be to ensure everyone understood what was being said and to avoid any potential issues arising from misunderstanding e.g. in connection with health and safety. The policy was not direct discrimination because it was not aimed at one particular race. The policy could have been indirect discrimination if it could disadvantage one particular race, but the tribunal held that it was justified as a way of achieving the legitimate aims of the business.

In the second case, a manager told a Polish employee not to “speak in your own language”; this was direct discrimination because it was aimed at one particular person and her race. Accordingly, there was little the employer could do to defend themselves and an award of compensation was made.

It may be that the ECJ follows the Advocate General’s opinion in both cases and leaves us with what appears to be an uncertain outcome. However, the message to take away is that if you want to impose a rule that may disadvantage people of a particular religion or race in your workplace, then embody that rule in a general policy that applies to all staff instead of singling out individuals and take some legal advice on the drafting of your policy to minimise your risk.

Kate can be contacted at katebooth@eatonsmith.co.uk or on 01484 821 309.