Religion v Rules

Employment & HR Article

16 March, 2017

Muslim women's rights to wear a headscarf and full-face veil in public places and within the workplace have been subject to major debate. Various European countries have addressed the issue, with France and Belgium restricting such women's rights in 2011, and both Austria and the Netherlands implementing similar restrictions.

On 12th June 2006, a Muslim women who worked for the security company G4S was dismissed. Samira Achbita brought a claim for wrongful dismissal on the grounds of direct discrimination relating to her religion. This was argued on the basis that she was treated differently because of her particular religion, which was clear through the visible wearing of a headscarf.

The questions the European Court of Justice faced included; whether a private employer is permitted to prohibit a female employee of Muslim faith from wearing a headscarf in their workplace and whether that employer is permitted to dismiss her if she refuses to remove the headscarf at work.

On Tuesday 14th March 2017 the Court ruled that; the fact that a female employee of Muslim faith is prohibited from wearing an Islamic headscarf at work does not constitute direct discrimination based on religion if that ban is founded on a general company rule which prohibits visible political, philosophical and religious symbols in the workplace and not on stereotypes or prejudice against any religions or religious beliefs.

The Court continued and stated that such a ban may constitute indirect discrimination based on religion. However, this may be justified in order to enforce a policy of religious and ideological neutrality pursued by an employer in the company concerned, in so far as the principle of proportionality is observed in that regard. The Court ruled that the following factors must be taken into account: the size and conspicuousness of the religious symbol, the nature of the employee's activity, the context in which she has to perform that activity and the national identity of the Member State concerned.

This ruling has made it clear that decisions will be in the hands of national courts. We could see this resulting in some countries adopting stricter rules compared with others, however it will allow national courts to represent the diverse cultures throughout the European Union.

The ban must be based on company rules which require all employees to "dress neutrally". Any customer's personal views and opinions on the matter must not be taken into consideration, even if they complain. This goes against the ruling in Bougnaoui and ADDH v Micropole SA where a decision to dismiss an employee for wearing a headscarf following a customer complaint was found to be direct discrimination.

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