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Hijab Ban Amounts To Direct Discrimination

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 hello@scesolicitors.co.uk.

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SCE Solicitors is a boutique employment law and dispute resolution practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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