Court says employers can ban headwear as part of work rule
EMPLOYERS are allowed to ban employees from wearing religious symbols, including the Islamic headscarf, according to the European Court of Justice.
An internal rule which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination, judges concluded.
This is the first case of its kind to specifically deal with the headscarf in the workplace.
The European Court of Justice (ECJ) judgement was sparked by the case of a woman who was fired from her job as a receptionist at G4S in Belgium.
Samira Achbita was dismissed in June 2006 after insisting on wearing the Islamic headscarf at work.
She challenged her dismissal in the Belgian courts, which referred the case to the ECJ in relation to interpretation of an EU directive on equal treatment in employment and occupation.
The Court of Justice found that G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction.
A press summary setting out the ECJ’s findings said: “The rule thus treats all employees of the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally.
“It is not evident from the material in the file available to the court that that internal rule was applied differently to Ms Achbita as compared to other G4S employees.
“Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive.”
The Luxembourg-based court found that the prohibition on wearing an Islamic headscarf, which “arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace”, does not constitute direct discrimination based on religion or belief within the meaning of the directive.
The summary added that such a ban may constitute “indirect discrimination” if it is established that the apparently neutral obligation it imposes results in people adhering to a particular religion or belief being put at a particular disadvantage.
However, such indirect discrimination may be “objectively justified by a legitimate aim”, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, provided that the means of achieving that aim are appropriate and necessary.
Owen John, senior associate at Darwin Gray, said: “In this judgement, the European Court of Justice (ECJ) has decided that the banning of two female workers from wearing headscarves at work does not amount to direct discrimination.
“In effect, what the ECJ is saying is that an employer can ban workers from wearing any “political, philosophical or religious” sign (such as a headscarf ) at work, but only if such a ban is based on an internal company rule that requires all workers to “dress neutrally”.
“In other words, an employer must maintain the consistent approach of banning all such “political, philosophical or religious” signs. By doing so therefore, the rationale is that an employer is not treating one religion less favourably than another religion, or treating one political position less favourably than another political position.”