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    Hijab

    Is it unlawful to ban a Muslim employee from wearing her hijab (Islamic headscarf) when in contact with clients?

    The recent French case of, ‘Bougnaoui -v- Micropole SA’ heard in the Court of Justice of the European Union (CJEU) advised that the answer was yes. The Advocate General has now provided an opinion on the facts. (It is important to note that the Advocate General’s opinion is not binding, it is the role of the Advocate General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible).

    The facts of the case

    • Ms Bougnaoui, a practising Muslim was employed by Micropole SA as a design engineer. Ms
    Bougnaoui wore a hijab (Islamic headscarf) at work and when she visited clients. When
    wearing the hijab, her head was covered but her face was exposed.

    • A client complained to Micropole SA, and made a request that there should be “no veil next
    time”. As a result, Ms Bougnaoui was asked by her employer not to wear her hijab when
    visiting clients. She refused to comply with this request and was subsequently dismissed.

    • The case heard in the French Labour Tribunal dismissed Ms Bougnaoui’s claim for
    discrimination based on her religious beliefs. The Tribunal held that the dismissal was well
    founded on the basis of a “genuine and serious reason”. This decision was appealed.

    The case was then referred to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether; Micropole’s policy requiring an employee to remove her hijab when in contact with clients, was a “genuine and determining occupational requirement”, under Article 4(1) of the Equal Treatment Directive (2000/78/EC). (This directive establishes a general framework for equal
    treatment in employment).

    Advocate General Sharpston concluded that;

    • the dismissal of an employee who is a practising Muslim on the ground that she refuses to
    comply with an instruction from her employer that she is not to wear a hijab when in contact
    with clients of the business, amounted to unlawful direct discrimination on the grounds of
    religion or belief.
    • the prohibition on direct discrimination extends to manifestations of religion or belief (in this
    case wearing a hijab). Ms Bougnaoui was treated less favourably on the grounds of her
    religion than a comparator would have been treated in a comparable situation.
    • discrimination would only be lawful if it based on an “occupational requirement”, which was
    “genuine” and limited to matters which are absolutely necessary in order to undertake the
    professional activity in question.

    Interestingly this decision is in contrast to the opinion of Advocate General Kokott presiding over the case of ‘Achbita v G4S Secure Solutions NV’, which we reported on in our July edition of Peach Press. The Achbita case concluded that prohibiting an employee from wearing a headscarf can be justified by an employer’s general policy of neutrality, where the ban is applied consistently to all visible signs of religious or philosophical beliefs.

    We would advise all employers to take a cautious approach when dealing with matters such as these as you can see there are conflicting approaches. Seek legal advice before taking any action.

    The July edition of “Peach Press” is now available for you to download.

    Click the image below to download your copy.

    Peach Press July 2016

    The potential implications for employment law following the Brexit decision…

    The decision on the UK’s membership of the European Union was confirmed on the 23 June 2016, in light of this we are taking a look at some possible employment law related implications.
    The full transition to leave the Union is likely to take a period of at least 2 years, with the British government now having to negotiate a new trading relationship with the remaining 27 member states. Overall, the UK is likely to remain bound by some European employment laws because they have been enshrined in to our legislation, and it is unlikely to make any drastic changes in the short term.

    We predict that the European led laws that are likely to remain include:

    TUPE legislation

    • Leaving the EU will not repeal TUPE, Britain would need to repeal this itself. TUPE is likely to remain as is as it now part of accepted employment protection and the UK gold plated this when introducing the “service provision change” in 2006.

    • Consultation provisions (and a possible relaxation of the same).
    It is possible that post-transfer harmonisation of terms and conditions will be allowed, which currently the UK cannot do due to European case law.

    Possible areas that may see some change include:

    Redundancy consultation

    • The UK’s current laws on collective consultation derive from an EU Directive.

    • The current law is unpopular with employers and it is possible that steps will be taken to relax the consultation procedures, e.g. to increasing the current required number of employees (20) who are to be made redundant, to a higher threshold (i.e. 100) before the formal consultation process and HR1 is triggered.

    Working Time Regulations

    • Most of the Working Time Regulations are likely to remain.

    • The UK’s position on paid holiday is unlikely to change, the UK increased/improved the European 4 weeks’ paid annual leave to the statutory 5.6 weeks in the UK.

    • In respect of holiday pay, recent case law regarding the accrual of holiday during long-term sick leave could be altered.

    • The definition of a ‘weeks’ pay’, which currently includes commission and overtime following ECJ rulings could be reduced back to the position it was a few years ago, with just basic salary being paid as holiday pay.

    Agency Worker Regulations

    • These implement the EU Temporary Agency Workers Directive, which require employers to offer equal terms & benefits to agency workers once they have been working for 12 weeks.

    • Due to the unpopularity of the regulations they could be repealed in time.

    Discrimination

    • The 2006 EU Equal Treatment Framework Directive currently binds the UK and as a result, the UK introduced protected characteristics, which included religion and belief.

    • The UK introduced legislation to prohibit sex discrimination, race discrimination and disability discrimination (and others) well in advance of Europe requiring this.

    • Changes to the protected characteristics in their current form are unlikely, however it may be possible that discrimination compensation will be capped (as unfair dismissal compensation is capped). As members of the EU this could not be done, however, as the UK has now decided to leave the Union, this is no longer the case.

    Family Friendly laws (e.g. maternity, paternity and adoption rights)

    • The UK already exceeds the EU rights in respect of family rights, e.g. the allowance of 52 weeks’ maternity and shared parental leave, as such changes here are unlikely.

    We can only at this stage give an overview of what we think will be the likely implications of the Brexit decision, in the short term we do not believe there is any need to panic, and any change is not likely to occur for some time. We shall continue to provide updates on this area once there is clearer information available.

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