A European court ruling that allowed companies to ban Muslim employees from wearing headscarves does not automatically apply in Britain, lawyers warned last night.
The European Court of Justice (ECJ) ruled yesterday that such a ban does not constitute “direct discrimination” if it is based on internal company rules that apply to everyone and require all employees to “dress neutrally”.
The judgment was delivered in cases brought by two employees, one in Belgium and one in France, who were dismissed for refusing to remove headscarves.
However, UK companies face a rash of discrimination claims if they adopt the ban, experts warned.
Employers hoping to win a similar ruling would have to go to Europe, which would take years and not be possible before the UK leaves the European Union, they added.
The ECJ also made clear that it is ultimately for national courts to determine the facts in any given case and accepted they might find that “persons adhering to a particular religion” were discriminated against by a ban.
Juliet Carp, vice-chairman of the Employment Lawyers Association and a partner at Kingsley Napley said: “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.”
While the ECJ had ruled that such a ban was only indirect discrimination and therefore potentially justifiable, it was unlikely that a UK employment tribunal would agree, she said.
“In the UK we have accepted differences — for example Sikh head gear on construction sites and children carrying ceremonial Sikh knives into schools — we tend to be more adaptable.” Anthony Fincham, employment partner with CMS Cameron McKenna, said: “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.”
Dan Begbie-Clench, employment partner with Doyle Clayton, added that any such ban would have to be “proportionate and to achieve a legitimate aim”.
Neil Carberry, CBI director for people and skills, said: “Companies want a common sense approach to dress codes that allows for sensible and equally applied rules that are not discriminatory. [The] ruling provides a basis for that and ensures that staff wearing religious symbols are not singled out.” The ECJ ruling prompted condemnation from religious groups. “It is a sad day for justice and equality,” the Muslim Council of Britain said. “At a time when populism and bigotry are at an all-time high, we fear that this ruling will serve as a green light to those wishing to normalise discrimination against faith communities.
“Many will be worried that this action will prevent Muslim women who choose to wear the scarf from securing jobs. And it sends a message that we cannot accept a plural society that recognises and celebrates religious differences. This is a backward step which people of all faiths and none should speak out against.”
The Islamic Human Rights Commission said that the ruling set an “alarming precedent”.
The ruling, the first on the issue of Islamic headscarves at work, was prompted by two cases. The first involved Samira Achibta, a receptionist fired for wearing a headscarf to work at the company G4S in Belgium.
In the second case, Asma Bougnaoui, a design engineer, was fired from an IT consultancy in France, Micropole, after a customer complained that his staff had been “embarassed” by her headscarf while she was on their premises.
Q&A
What does the ruling by the European Court of Justice say?
That a ban by employers on the wearing of political, philosophical or religious signs does not necessarily constitute “direct discrimination”.
How significant is this?
It is the first ruling by Europe’s highest court that deals with the sensitive issue of religious symbols, in this case, Islamic headscarves, at work.
What about the wider political context?
This gives it greater traction: it comes on the eve of a Dutch election in which Muslim immigration is a key issue, as it has become across Europe.
What does it mean for employers?
That if they have an internal rule that is applied across the board to ban religious symbols, it is not discriminatory. However they could still find themselves open to claims if the rule is difficult to comply with for a particular group, such as Sikhs and turbans.
What about customers who may object to dealing with an employee in a headscarf or turban?
The ruling is clear that customers cannot call the tune. If there is no internal company rule, employers who are dictated to by a customer who does not want to deal with a worker wearing an Islamic headscarf could also find themselves on the end of a discrimination claim.
These cases that the court ruled on were Belgian and French. Do they apply in the UK?
They do — while we are part of the EU. However the approach in the UK has been much more one of a “plural” approach as against those more secular societies and lawyers warn that it is unlikely that a tribunal in Britain would agree that a total ban that stopped employees wearing headscarfs was justified.
Why will tribunals here not follow the European decision?
Under English employment law, there is no defence, as in Europe, that a ban that impacts disproportionately on a group of workers is discriminatory.