We now have two completely inconsistent opinions from two different Advocate Generals. The Advocate General pronounces opinions in advances of claims being heard at the European Court of Justice.
In Bougnaoui and another -V- Micropole SA, the Advocate General Sharpston has given an opinion that an employee’s dismissal for wearing an Islamic headscarf at work, in breach of a direct instruction, was directly discriminatory and could not be defended on the grounds of a “genuine and determining occupational requirement” under Article 4(1) of the EU Equal Treatment Framework directive.
This opinion contradicts the opinion by another Advocate General Kokott in the case of Achbita -V- G4S Secure Solutions NV. A case on very similar facts as the one above, the Advocate General held that banning of a woman wearing a headscarf was not discriminatory because the ban could be objectively justified.
The European Court of Justice is set to determine both of these cases later this year.
See our article on Brexit. When, eventually, Britain leave the EU it will not be bound by the European Court of Justice’s jurisdiction and it will be a matter for domestic law. The UK adopts a more tolerant view of persons wearing religious attire at work, and it is difficult to envisage the UK case law, or legislation, banning Muslim women wearing headscarves at work.
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Author: Gareth Price e: