Comment: EU workplace headscarf ruling

Comment: EU workplace headscarf ruling

Attractive Muslim young woman working in office on computer

The European Court of Justice recently ruled that employers may ban employees from the wearing of any visible “political, philosophical or religious sign” as long as it is part of an internal company policy which applies to all employees.

Tom Lewis, director of the Centre for Conflict, Rights and Justice (CCRJ) at Nottingham Law School and Rev Dr Helen Hall, senior lecturer and member of the CCRJ, give their views on the ruling.

It is important not to overstate what the European Court of Justice has said in relation to the wearing of head-scarves for religious reasons, and indeed all other religious and political symbols in the workplace.  Firstly, the ruling only applies to EU law, it does not affect the protection which individuals could claim by virtue of the Human Rights Act and the European Convention on Human Rights.   Individuals have a right to manifest their religious beliefs and the State must protect this right in its courts.  Therefore, employees are still free to challenge any bans on human rights grounds, even if they are employed in the private rather than the State sector.

Secondly, even in relation to the law of the European Union, the statement by the ECJ is of limited impact.  A prohibition cannot directly discriminate against any religious or ethnic group, so it would have to apply to all religious symbols.  It would not, for example, be permissible to forbid Muslim women to wear a hijab but allow Sikh men to come to work in a turban or Christian employees to have a visible cross.  Furthermore, if a general ban effects one group of people more than others – if it puts them at a particular disadvantage –  it will be indirectly discriminatory.  Indirect discrimination may be permitted, but only if it is a proportionate way of achieving a legitimate aim.  If there is another less onerous way of achieving the same goal, any ban would not be proportionate.  And if the employer is motivated by prejudice or spurious reasons, for example claiming that customers wouldn’t want to be served by people who appear religious, then the aim would not be a legitimate one.

Therefore, a ban which satisfied the requirements of EU law may be quite difficult to achieve in the real world and even if it ticked the necessary boxes, could still be challenged under human rights protection.  Consequently, religious workers are perhaps not as vulnerable as some media reports of this ruling might suggest.

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