An employer has no right to dismiss if an employee refuses to remove the head scarf during customer contact. At any rate, in the view of the ECJ advocate general Eleanor Sharpston, such a dismissal is ineffective as unjustified discrimination.

A software designer from France had gone to court. At work she wore a head scarf that - exclusively - covered her hair and was intended to express her Islamic faith. Her duties as project engineer included visiting customers at their business premises. When a customer complained about the head scarf and demanded that at the next visit "there should be no veil," the employer called on its employee to dispense with wearing the head scarf when in contact with customers. When she refused, she was dismissed.

The French court asks the ECJ about the interpretation of the discrimination directive

This dismissal might be invalid under European law. According to directive 2008/78/EC on equal treatment in employment and occupation, member states may only permit unequal treatment of employees if "by reason of the particular occupational activities concerned or the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement." Consequently the French Court of Cassation (the highest ordinary court in France) posed the question, whether the customer's desire for a "head scarf ban" represented such an occupational requirement? The Court of Cassation submitted this question to the European Court of Justice (ECJ).

Customer complaints do not constitute an exception to the "occupational requirement"

The ECJ will only decide on this question in autumn. But ECJ advocate general Sharpston already submitted her conclusion in July 2016 and found the dismissal to be unlawful. The conclusion is an expert opinion that serves the Court of Justice as an orientation aid in reaching a decision. In it Sharpston took the view that the dismissal represented direct discrimination of the employee concerned on religious grounds.

Neutral clothing guideline as indirect discrimination

At the same time Sharpston's German colleague, Juliane Kokott has already commented on precisely this question of the permissibility of neutral clothing guidelines. In this conclusion Kokott expressly took the view that a head scarf ban was permissible. This at any rate was the case if the clothing guideline was based on a general company arrangement. The employee had in this case not been discriminated against "on account of her religion" if the company wished to establish religious neutrality overall.

The courts in Germany have also already addressed the subject of head scarf bans at the workplace on a number of occasions. The Augsburg Administrative Court made the headlines only a few weeks ago with its decision, in which the judges endorsed an Islamic law student who resisted the order of the Bavarian Free State to remove her head scarf during her legal training, for example when performing sessional services for the public prosecutor.

Whereas the Federal Constitutional Court deemed a blanket head scarf ban for teachers as an infringement of religious freedom in 2015, the Berlin Labor Court approved a head scarf ban for Berlin teachers in April 2016.

Two ECJ verdicts on head scarf ban in the private sector expected

The legal disputes in Germany occurred in the civil service. The state itself is the boss here - and it is committed to religious neutrality to a particular degree. The cases in France and Belgium each apply to clothing guidelines in private companies.

The two advocate generals adopt different directions in their conclusions. The ECJ tends to follow the conclusions. Consequently two differentiated decisions on the subject of head scarves are to be expected from Luxembourg in autumn. We will notify you of the further developments.

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