Banning Muslim Headscarves in the Workplace

14.03.17

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The impact of the wearing of Muslim headscarves is never too far away from the headlines. The Court of Justice of the European Union (CJEU) has today released a press release of its (non-binding) decision in two cases, the Achbita and Bougnaoui cases[1], concerning the wearing of Muslim headscarves in the workplace. In a cursory review of reporting of these cases in the media, the media seem to be reporting that “the Muslim headscarf ban is legal”[2].  In an era of “fake news” it is important to understand what the Court has actually decided.

Achbita

In 2003, Samira Achbita, a Muslim female employed as a receptionist by G4S in Belgium was subject to an unwritten rule within G4S that prohibited employees from wearing visible signs of their political, philosophical or religious beliefs in the workplace.

In April 2006, Ms Achbita informed her employer that she intended to wear an Islamic headscarf during working hours. In response, the management of G4S informed her that the wearing of the headscarf would not be tolerated because the visible wearing of political, philosophical or religious signs was contrary to the position of neutrality G4S adopted in its contacts with its customers.

On 29 May 2006, the G4S works council approved an amendment to the workplace regulations, which came into force on 13 June 2006. These provided that ‘employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from engaging in any observance of such beliefs’. On 12 June 2006, Ms Achbita was dismissed because of her continuing insistence on wearing the Islamic headscarf at work. She challenged that dismissal in the Belgian court.  The Belgian court referred the question of whether the prohibition on wearing an Islamic headscarf, which arises from a general internal rule, constitutes direct discrimination.

Decision of CJEU

The Court held that 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.  As the rule treats all employees in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally, it did not treat the claimant differently, compared with 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. Therefore, the rule did not amount to direct discrimination.

However, the Court went on to say, that the rule could amount to indirect discrimination, but that was a question for the national court to determine.

[1] Achbita, Centrum voor Gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions (Case C-157/15), and Bougnaoui and Association de défense des droits de l’homme  (ADDH) v Micropole Univers  and  (Case C-188/15).

[2] See for example, http://www.standard.co.uk/news/world/european-court-of-justice-rules-employers-can-ban-women-from-wearing-headscarves-a3489126.html ; http://www.bbc.co.uk/news/world-europe-39264845 ; https://www.washingtonpost.com/world/eu-court-says-employers-can-ban-muslim-headscarf-at-workplace/2017/03/14/e2061c12-c520-4cd2-a7f8-8ca78d3c02ed_story.html?utm_term=.0140df4ead98

Written by Mugni Islam-Choudhury, Barrister at No5 Barristers’ Chambers

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