European headscarf ban won’t be imposed on British workers automatically, say lawyers
The ECJ ruled on Tuesday it would not be considered direct discrimination if an employer banned its workers from wearing religious and political symbols, such as an Islamic headscarf.
While acknowledging such a ban could constitute indirect discrimination on some instances, the court ruled that such discrimination would be fair if “objectively justified by a legitimate aim” such as a company wanting to adopt a neutral policy.
However, experts have warned if UK employers were to adopt such a ban, they would likely face a barrage of discrimination claims.
Employers wishing to ban their employees from showing any kind of religious or political affiliation would have to appeal to Europe, and that would take years and be impractical until the UK leaves the EU.
“There is a danger that many UK employers might misread the headlines around this ruling and feel that it is legally OK to ban the wearing of headscarves by those in public-facing roles, provided they impose a neutral and across-the-board ban on all employees,” said Juliet Carp, vice-chairman of the Employment Lawyers Association and a partner at Kingsley Napley, speaking to the Times.
Although the ECJ claimed the ban is only indirect discrimination and therefore potentially legitimate, UK tribunals would be unlikely to rule in its favor, especially given the UK’s tolerance and diversity, she added.
“In the UK we have accepted differences — for example Sikh headgear on construction sites and children carrying ceremonial Sikh knives into schools — we tend to be more adaptable.”
CMS Cameron McKenna employment partner Anthony Fincham backed this view, saying courts would likely “shy away” from giving an absolute ruling and that every verdict would be functional to cases’ varying dynamics.
“I think our courts would shy away from an absolutist position ... and we would be left with case-by-case testing of the employer’s reasons, as is consistent with the ruling,” Fincham said, according to the Times.
However, Jonathan Chamberlain, a partner at UK firm Gowling WLG was reported saying in the Independent that the ECJ’s ruling is in line with what the UK has already been practicing for several years.
“For example, it’s fine for employers to have a dress code but it needs to be applied with some sensitivity and flexibility to take account of religious beliefs,” he said.
“What is almost certainly never OK is for an employer to tell an employee to stop wearing a religious symbol because a particular customer has asked for it.”
Prime Minister Theresa May spoke out today in the Commons during PMQs to defend women's right to wear a hijab or headscarf, saying that "it is the right of all women to choose how they dress", adding it was not for government to dictate what women "can and cannot wear".
"We have a strong tradition in this country of freedom of expression, and it is the right of all women to choose how they dress and we don't intend to legislate on this issue.
"You have raised the broader issue of symbols, but of course this case came up particularly in relation to the wearing of the veil," May pointed out.
"There will be times when it is right for a veil to be asked to be removed, such as border security or perhaps in courts, and individual institutions can make their own policies.
"But it is not for Government to tell women what they can and cannot wear, and we want to continue that strong tradition of freedom of expression."
The ECJ also ruled that the ban would not be justifiable if imposed for customer satisfaction.
The ruling came after two cases were brought by employees in France and Belgium who had been dismissed for not removing their headscarf, despite it not covering their face.
While human rights charity Amnesty International welcomed the ruling on the French case that “employers are not at liberty to pander to the prejudices of their clients,” it claimed the ban would open “a backdoor to precisely such prejudice.”
The ruling faced backlash by a series of human rights organizations and Muslim groups.
Open Society Justice, which is backed by philanthropist George Soros, said it was disappointed by the ruling.
“In many member states, national laws will still recognise that banning religious headscarves at work is discrimination,” Maryam Hmadoun, the initiative’s policy officer, said, according to the Independent.
“But in places where national law is weak, this ruling will exclude many Muslim women from the workplace.”