The French Cour de Cassation has handed down its judgment in the case of Ms Asma Bougnaoui, a Muslim design engineer sacked for refusing to remove her hijab when visiting the firm’s customers.
Regular readers will recall that Ms Bougnaoui worked for the French information technology company Micropole SA. She wore a hijab at work but was told by her employer to remove it while visiting a client after the client’s staff had complained about her appearance – and when she refused to do so she was sacked. She sued for unfair dismissal and the French Cour de Cassation referred the following question to the CJEU:
“Must Article 4(1) of [Directive 2000/78] be interpreted as meaning that the wish of a customer of an information technology consulting company no longer to have the information technology services of that company provided by an employee, a design engineer, wearing an Islamic headscarf, is a genuine and determining occupational requirement, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out?”
In Bougnaoui and ADDH  EUECJ C-188/15, the Grand Chamber noted that it was unclear whether the question related to a finding of a difference of treatment based directly or indirectly on religion or belief. It was for the Cour de Cassation to ascertain whether Ms Bougnaoui’s dismissal had been based on non-compliance with an internal rule prohibiting the visible wearing of signs of political, philosophical or religious beliefs. If that were the case, it would be for that court to determine whether the difference of treatment arose from an apparently neutral internal rule that was likely to result in certain persons being put at a particular disadvantage, whether it was objectively justified by the pursuit of a policy of neutrality and whether it was appropriate and necessary. If, however, Ms Bougnaoui’s dismissal was not based on the existence of such an internal rule, it would be necessary to determine whether an employer’s willingness to take account of a customer’s wish no longer to have the employer’s services provided by a worker wearing a hijab was justified for the purposes of Article 4(1) of the Directive.
The Grand Chamber ruled as follows:
“Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision” .
The judgment of the Cour de Cassation
In Arrêt n° 2484 du 22 novembre 2017 (13-19.855) – Cour de cassation – Chambre sociale – ECLI: FR: CCASS:2017: SO02484 the Cour de Cassation noted that the ECJ had clarified the issue of the refusal of an employee to abandon the wearing of Islamic headscarves in the exercise of her professional activities at the employer’s customers and that it was for the national court to determine whether – taking into account the constraints inherent in the business and without the business having to undergo an additional charge, it had been possible for the employer, faced with such a refusal, to propose a work assignment that did not involve visual contact with those customers, rather than proceeding to the complainant’s dismissal.
The Cour de Cassation held that an employer might provide in the rules of the company or in a memorandum subject to the same provisions as the rules (pursuant to Article L 1321-5 of the Code du Travail) a neutrality clause prohibiting staff from wearing political, philosophical or religious signs or symbols in the workplace, since that general clause was undifferentiated and was applied only to employees in contact with customers. Where an employee refused to comply with such a clause in the exercise of her professional activities with the company’s customers, it was for the employer to decide whether, taking into account the constraints inherent in the company and without the company having to suffer an additional load, it was possible to propose that the employee’s work assignment should not involve visual contact with the customers, rather than proceeding to her dismissal.
In the case of Ms Bougnaoui, the lower court had held that the restriction that Micropole SA had imposed on freedom of employees to manifest their religious beliefs by means of religious dress was proportionate to the aim pursued, because she had only limited contacts with customers, and it therefore appeared that her dismissal was not an act of discrimination on grounds of her religious beliefs. She was authorised to continue to express those beliefs within the company; but it was justifiable and legitimate to impose a restriction when the freedom given to an employee to manifest her religious beliefs went beyond the scope of business and encroached on the sensitivities of the business’s customers and, therefore, on the rights of others.
It was apparent from the lower court’s findings that the company’s internal rules did not include any neutrality clause prohibiting the visible wearing of any political, philosophical or religious sign in the workplace; nor was it set out in a memorandum subject to the same provisions as the rules of procedure pursuant to Article L 1321-5 of the Code du Travail. The prohibition on Ms Bougnaoui wearing the Islamic headscarf in her contacts with customers was merely an oral instruction given to an employee and aimed at a particular religious sign [un ordre oral donné à une salariée et visant un signe religieux déterminé] – which resulted in an act of discrimination directly based on religious convictions.
It followed from the judgment of the ECJ in answer to the question referred for a preliminary ruling that an employer’s willingness to take into account the wishes of a client no longer to see the services of that employer provided by an employee wearing an Islamic headscarf could not be regarded as a fundamental and decisive occupational requirement within the meaning of Article 4 (1) of the Directive of 27 November 2000.
For these reasons: the Court struck out and annulled [casse et annule] the judgment between the parties of 18 April 2013 of the Paris Cour d’Appel.
As to the companion Belgian hijab case, Achbita, on 9 October 2017, the Belgian Cour de Cassation/Hof van Cassatie overturned the decision of the Labour Court of Antwerp of 9 March 2015, ruling that there could be an abuse of the right to dismiss (and an indirect discrimination) even in the absence of a fault and even if the wrongful conduct has been committed unknowingly.
The judgment does not appear to be published; however, there is a full analysis by Emmanuelle Bribosia on the website of the European network of legal experts in gender equality and non-discrimination, here.