Headscarf Bans At Work: Explaining The Ecj Rulings

Professor Steve Peers

When tin employers ban their staff from wearing headscarves? Today’s rulings of the ECJ convey attracted a lot of attention, about of it confused. There convey been previous posts on this spider web log nearly the background to the cases, too nearly the non-binding opinions of Advocates-General, too at that spot volition hopefully move farther to a greater extent than analytical pieces nearly today’s judgments to come. But this postal service is a curt explanation of the rulings to clear upward whatsoever confusion.

Background

The European Union has long had laws on sexual practice discrimination, too discrimination regarding European Union citizens on grounds of nationality. Since 2000, it has every bit good had laws against race discrimination too every bit good a ‘framework directive’ against discrimination at run on grounds of disability, age, sexual orientation or religion. The ECJ has oftentimes been called upon to dominion on the starting fourth dimension 3 of those grounds, but today’s 2 judgments (G4S v Achbita too Bougnaoui) are the starting fourth dimension time it has been asked to dominion on non-discrimination at run on religious grounds.

European Union constabulary does non by too large apply to other aspects of religion, except that European Union constabulary on asylum applies to people who convey been persecuted on religious grounds. So today’s judgments are non relevant every bit regards regulating faith inward education, for instance.

It should every bit good move noted that the European Convention on Human Rights (ECHR) protects the liberty of religion.  The European Court of Human Rights – a split upward torso – has previously ruled on how that liberty applies inward the workplace, final that inward about cases employers must permit employees who wishing to have on religious symbols (see Eweida v UK, for example).

The rulings

The G4S ruling is the to a greater extent than pregnant of the 2 cases, inward which the ECJ’s reasoning is most fully laid out. First the Court rules that article of apparel worn for religious reasons is an expression of religious belief. Then it concludes that at that spot was no straightaway discrimination (ie discrimination purely on religious grounds) against Ms. Achbita, who was non allowed to have on a headscarf when dealing amongst customers, because her employer had a full general ban on any employee display of religious or political belief.

Next, the ECJ ruled on whether at that spot was whatsoever indirect discrimination (ie discrimination not on religious grounds, but which affected people of a item faith to a greater extent than than others). Such discrimination tin move ‘objectively justified past times a legitimate aim…if the agency of achieving that aim are appropriate too necessary.’ In the Court’s view, the national courtroom which had asked the ECJ these questions should consider that an employer’s ‘neutrality’ policy regarding customers was ‘legitimate’, too was purpose of its ‘freedom to behave a business’.

However, such every bit policy had to move ‘systematic’ too ‘undifferentiated’ every bit regards unlike beliefs. It every bit good should move considered whether it was express to those workers who ‘interact amongst customers’, too whether it would convey been possible to reassign the employee to a unlike purpose without ‘visual contact’ amongst customers, without the employer taking on an extra burden.

In the minute case, the Court ruled that employers could non discriminate due to a client asking that employees non have on a headscarf.  This was non ‘a genuine too determining occupational requirement’ that could justify reserving a project to those who did non have on headscarves.

Summary

The ECJ’s rulings must move applied past times the 2 national courts that requested it to rule. They are every bit good binding to a greater extent than by too large on the courts of all 28 European Union Member States.

In regulation the rulings hateful that employers may ban employees from wearing headscarves, but only inward for certain cases. First of all, the cases solely concern customer-facing employees, on status that the employer has a 'neutrality' policy. The ECJ was non asked to dominion on other groups of employees, but its rulings dot that it would move to a greater extent than difficult, if non impossible, to justify bans inward those cases. Nor was it asked to clarify farther what a ‘customer-facing’ employee is exactly.

Influenza A virus subtype H5N1 neutrality policy hateful an employer every bit good has to ban other religious or political symbols worn past times customer-facing employees. So no kippas, no crucifixes, no turbans - too no icons of Richard Dawkins either. This could move rather awkward inward calorie-free of the human rights instance constabulary referred to above, which says wearing crucifixes (for instance) is sometimes an expression of an employee's correct to manifest her liberty of religion.

There is a sparse trace betwixt maxim that employee headscarves can't move banned just because customers enquire for it on the 1 hand, too allowing employers to ban such article of apparel inward final result due to anticipation of client reaction. In exercise this mightiness seek something of a legal fiction.

The bottom trace is that today’s judgments create non constitute a 'workplace headscarf ban', but only permit employers to constitute such a ban – bailiwick to limits which mightiness seek hard to comply amongst inward practice.

Barnard & Peers: chapter 9, chapter 20

Photo credit: WeAretheCity

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