The European Court of Justice has held that a customer’s objection to an Islamic headscarf cannot be a genuine and determining occupational requirement.

occupational requirement

The employee, in this case, was told when she was recruited that the wearing of an Islamic headscarf might pose a problem when she was in contact with customers of the company and that she would not be able to wear the veil in all circumstances.

Following a site visit, a customer complained that she had worn her headscarf and requested that she not do so in future. When the employer raised this issue with her, she refused to comply with the customer’s wishes and so the employer dismissed her.

She then brought a claim for religious discrimination but lost both at first instance and on appeal. On further appeal the court referred the matter to the European Court of Justice and asked it to clarify whether, on the assumption that her treatment was discriminatory, it could be justified as being based on a genuine occupational requirement.

Occupational requirement must be objectively dictated

The European Court of Justice held that the employee’s dismissal amounted to direct discrimination which could not be justified on the ground of genuine and determining occupational requirement. Such an occupational requirement, it said, cannot include an instruction from a customer who did not want the employer’s services carried out by a worker wearing an Islamic headscarf.

The Court said that it is clear that the concept of religion covers both the manifestation of a belief as well as the holding of a belief. It said that it is also clear that it is not the ground on which the difference of treatment is based but a characteristic related to that ground, which must constitute a genuine and determining occupational requirement.

The Court said that only in very limited circumstances will a characteristic related to religion constitute a genuine and determining occupational requirement. It said that such a characteristic may constitute such a requirement only by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out. It has to be objectively dictated by the nature of the job or the context in which they are carried out. It cannot cover subjective considerations, including an employer’s willingness to take account of the particular wishes of the customer.

The employee’s dismissal was not because she had not complied with an internal rule, so whether the employer had a legitimate aim of pursuing a policy of neutrality with respect to its customers was not relevant.

Case reference: Bougnaoui v Micropole SA