ECJ Headscarf ruling

Sue Jenkinson

Last week the newspapers were full of misleading headlines about a European Court of Justice (ECJ) ruling. No surprise there then, it is often the case the ECJ rulings are misconstrued in the British press in order to meet the newspapers agenda or political view point. However this latest misinformation is very misleading. There were two cases considered with different outcomes. Last week the court held that in some circumstances it is legal for a work place to ban the wearing of a headscarf. These cases highlight the difficult balancing that the court has to consider between freedom of religion and non-discrimination. The ECJ held that a ban on wearing the Islamic headscarf would not automatically constitute direct discrimination. For the ban to be legal and not constitute discrimination it must be based on an individual company’s internal rules which must require all employees to dress ‘neutrally’. It cannot be based on the wishes of a customer, because this would be a subjective consideration and therefor illegal.
The cases concerned Samira Achbita who was sacked by G4S Belgium when she started to wear a headscarf to work, after working for the firm for three years. G4S originally had an unwritten rule that was subsequently incorporated into its workplace regulations banning the wearing of ‘overt religious symbols’. Ms Achbita unsuccessfully argued that she was being directly discriminated against. However the court held that there was no discrimination because the prohibition was blanket and prohibited ‘any manifestation of such beliefs without distinction’. The court held that G4S were perusing the policy in a ‘consistent and systematic manor’. This contrasted with another judgment given at the same time where a French company sacked Asma Bougnaoui after a customer complained about her Islamic headscarf, the company Micropole had no such policy of neutrality in place and therefore had discriminated against their employee. Ms Bougnaoui had been professionally competent and she had been sacked only because of her refusal to remove her headscarf which was requested as the result of a customer complaint not company policy.
These judgments have had a very mixed reception with, Amnesty commenting that the decisions gave ‘greater leeway to employers to discriminate against women and men on the grounds of religious belief’ whilst in contrast Andrew Copson for the British Humanist Association comments ‘we need to take an approach that balances everyone’s rights fairly and we are pleased that the ECJ has today appeared to reinforce that principle’.

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