Dancing on a Pin Head

17 Mar 2017

This is a link to a piece I wrote on 7 October about headscarves in the Court of Justice of the European Union.

We know now the Court’s decision.

In Achbita the Court started from the proposition that people must be free to manifest their beliefs in public. But it went on to say G4S rule against wearing visible signs of belief covers any manifestation of any belief without distinction. It covers political, philosophical and religious symbols; it’s a “dress neutral” code and since there was no evidence it was applied differently to Ms Achbita there’s nothing to support her complaint of direct discrimination. Furthermore if the dress code could be interpreted as indirect discrimination:

  • an employer’s wish to project a neutral image is legitimate; and
  • a ban on visible signs is an appropriate way of achieving this

but only where the worker comes into contact with customers and if the dress code is applied consistently. Furthermore, if dismissal becomes an option the employer must consider redeployment to a backroom role.

In Bourgnaoui the French Court of Cassation was ticked off for a lack of clarity in the issue it referred to Luxembourg. The case was sent back with instructions to try again. The CJEU also told the French court that if the dismissal was for non-compliance with a dress code it must decide (a) if there was different treatment arising from the code that is likely to result in Ms Bourgnaoui being put at a particular disadvantage, (b) whether the code is objectively justified and (c) whether it’s appropriate or necessary.

The CJEU also told the French Court that if the dismissal was because the employer preferred to accommodate it’s customer’s wishes not to be served by a lady wearing a headscarf, it must decide if there is a genuine and determining occupational requirement which is legitimate and proportionate. For good measure it added that customers wishes cannot be such a requirement. So, the French court’s adroit hospital pass has been returned and it’s once again facing the Gordian knot formed by French laws on secularism.

This leaves us in a muddle. The question of direct discrimination is unresolved and employers can have one dress code for those who deal with the public, another for those who don’t and woe betide anyone who mixes the two up or panders to customer preference. I foresee difficulties ahead concerning balance and objective justification… and nothing the Court’s said will stop me from wearing my poppy with pride and remembrance (remember that row with FIFA last November? It could resurface in another guise).