Headscarves, to ban or not to ban?
Posted on 27th March 2017
Just like buses, you wait for months for a Court decision to be made, then two come along at once. Last week two rulings were made by the European Court of Justice (ECJ) regarding the banning of headscarves in the work place by employers. With the decision in these two cases potentially having far reaching consequences for all employees and employers, have the judgements clarified this area of law, or have the rulings only muddied the water and opened the way for more discrimination?
In the case of Achbita v G4S, the ECJ held that an employer’s dress code which banned the wearing of Muslim headscarves by employees on duty, was not direct discrimination (with of course a caveat that this was only in certain situations). However it could still amount to indirect discrimination. The facts of the case in question were as follows; the employee had been working for her employer for three years. She then began wearing a headscarf to work and was dismissed after refusing to remove the same. Ms Achbita made a claim that she had suffered direct discrimination. Her employer’s defence was that at the time of her hiring, there had been an ‘unwritten rule’ within the Company that any overt religious symbols were banned. This policy was subsequently included in the employer’s workplace regulations. The reason for this policy was that the Company wished to remain, and present, a ‘neutral’ stance on all matters to their clients.
The ECJ held that there had not been direct discrimination as the blanket ban on religious symbols applied to all employees in a public facing role. The policy would have applied equally to a Sikh man wearing a turban and not just a Muslim woman wearing a headscarf. The ECJ ruled that the employer had “genuinely pursued (the ban) in a consistent and systematic manner.” Consequently it seems that where employers enforce a blanket ban on, for example religious symbols at work, they would be legally within their right to do so.
However what complicated matters is that the ECJ held that whilst this was not direct discrimination, the employer would still have to show they had not enabled indirect discrimination. This is where a person is put at a particular disadvantage because they are actively following their religion by for example, wearing a headscarf, turban etc. To avoid falling foul of this, an employer (such as in Ms Achbita’s case) would have to consider issues such as whether it would have been possible to move her to another post within the company that was not a public facing role (where she could then continue to wear her headscarf).
On the same day as this ruling, the ECJ also made a decision in the case of Bougnaoui v Micropole. This was another claim which concerned the wearing of headscarves. Here the employee had been dismissed from her job in a French firm after refusing to remove her headscarf when one of their customers complained. This time the ECJ held that the employee had suffered direct discrimination. The reasoning behind this was that any ban based on “subjective conditions” (in this case, the request of a customer) would be discriminatory. In such cases, it will be up to the national Court to determine whether the reason for dismissal was solely because of a subjective reason or whether there were also other factors involved.
Since the two judgements last week, there have been mixed reviews. Some have welcomed the decision as being fair, using common sense and balancing the rights of everyone, while allowing a private or public company to make their own decisions about ‘neutrality’. However, others have claimed that the ruling only further segregates people and goes against diversity. Some argue that Muslim women now face discrimination on three fronts in the workplace; because of their gender, (in some cases) ethnicity, and now religion. Amnesty International has welcomed the decision in the case of Bougnaoui, but stated that the ruling in Achbita on the prohibition of religious symbols based on neutrality had only “opened a backdoor to precisely such prejudice”.
Religious symbols can already be banned for health and safety reasons at work, for example in hospitals where Crosses, Karas and other religious symbols cannot be worn by staff to avoid accidents/infections when treating patients. This in my view is a sensible decision. However is ‘neutrality’ another legitimate reason? Could a school for example, ban religious symbols to create an environment of neutrality for the children they teach which in turn may stop bullying? Or is it better for children to be inclusive and exposed to all faiths and religions at school? A Court would need to consider the genuine aim of an employer for banning religious symbols and whether the ban was a legitimate means of achieving that aim. Whatever your viewpoint may be on the subject, it is clear that we have not heard the last on this matter. Whilst some clarity may have been provided in these two specific incidences on direct discrimination, it seems that potential claims for indirect discrimination are still open for debate.