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Ban on Islamic headscarf

Ban on Islamic headscarf was direct discrimination (Advocate General's Opinion)

Advocate General Sharpston has given an opinion that an employee's dismissal for wearing an Islamic headscarf (hijab) at work, in breach of a direct instruction, was directly discriminatory on grounds of religion or belief.

The prohibition on direct discrimination in the EU Equal Treatment Framework Directive (2000/78/EC) extends to manifestations of religion or belief, and it was clear that the employee had been treated less favourably on the ground of her religion than comparator would have been treated.

An employee who had not chosen to manifest their religious belief by wearing particular apparel would not have been dismissed.

The discrimination could not be defended based on a "genuine and determining occupational requirement" under Article 4(1) of the Directive.

The Advocate General thought it was difficult to envisage circumstances, other than those related to serious health or safety concerns, in which a blanket ban on religious apparel could be justified. The hijab did not affect the performance of the employee's work and the employer in this case appeared to be relying purely on commercial interests based on the preference of its clients.

Direct discrimination could not be justified on the ground of financial loss. The Advocate General also gave her opinion as to whether the ban could be prima facie indirectly discriminatory, and whether it could be justified.

While it may be legitimate for an employer to place restrictions on dress, she saw it as unlikely that the ban in this case could be seen as proportionate.

This article incorporates material originally published on on 14 July 2016 and is reproduced with the permission of Thomson Reuters.

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