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How the media got the "Muslim headscarf ban" ruling wrong

It will be very hard for employers to legally ban women from wearing hijabs at work. But the far-right are already celebrating. 

In the 24 hours since the European Court of Justice (ECJ) published its judgments relating to Muslim women wearing a headscarf at work, much ink has already been spilled on the issue. This seems to be by many who have either not read the judgments or, at least, have not understood them.

On the one hand, the far-right across Europe is celebrating the end of Islamic clothing. On the other, religious rights advocates are mourning the end of freedom of religion in Europe. Both groups seem to base their opinions about the judgments on exaggerated media headlines about the EU’s court banning the Muslim headscarf, and both groups are highly likely wrong.

One fundamental point to be understood is the role of the European Court of Justice (ECJ) and the extent of its powers. The ECJ provides guidance to domestic courts on specific questions of EU law that arise within a case, but does not actually decide the case. In yesterday’s judgment of Achbita v G4S Secure Solutions NV, about a Muslim female receptionist who was dismissed for wearing a headscarf, the domestic court asked the ECJ a single, simple question: if an employer prohibits all employees from wearing religious symbols at work, is it direct discrimination under EU law if a Muslim woman is prevented from wearing a headscarf due to that policy?

The case therefore related just to attire in the workplace, and had no bearing on laws about what one can wear in public, or any place other than work. The issue before the court was not intrinsically a question of religious freedom, but one of employment rights.

The word "discrimination" in this context has the meaning we would commonly attribute to it – a particular individual or group being treated worse than others in a similar situation. The court’s judgment that there is no "direct discrimination" is unsurprising. When all religious symbols are banned, no one group can claim it is being discriminated against. Considering the legal concept of direct discrimination and the employer’s policy of banning all religious symbols, it is hard to see how the ECJ could have found that Ms Achbita was directly discriminated against.

The ECJ however went further and decided to also consider whether there could have been "indirect discrimination" in the case. This arises where a policy, although worded in a neutral way, in fact affects a certain individual or group more severely than others.

The court provides nuanced, practical guidance here, which seems to have escaped most of the commentators. The court ruled that employers must have a clear policy on the wearing of religious symbols, which must be consistently applied across the board. For instance, in a separate but related judgment, the ECJ made clear that a customer’s objection to a staff member’s religious clothing is not an acceptable reason for requiring the employee to remove it. 

However, the court could have also grappled with related judgments of the European Court of Human Rights (a completely separate court) and consider these as part of this judgment. It did not. 

This matters because the ECHR has already ruled on the issue of wearing religious symbols at work. In 2013, it held that British Airways should not have required a Christian check-in staff member to remove the cross she wore around her neck. On the other hand, an NHS trust could ban a geriatric nurse from wearing a cross as it could pose a health and safety risk.

Despite yesterday’s rulings, the ECHR judgments still apply to employers. There is no open invitation to ban religion in the workplace. Any employer taking both courts' rulings into account would have to introduce a blanket ban on all religious symbols and clothing, including Sikh turbans, Muslim headscarves, Christian crucifixes, the Star of David etc. Employers may therefore feel that a blanket ban is not realistic or practical. The rulings are therefore unlikely to lead to any overnight, or indeed long-term, change in company policies on what employees wear.

For all the legal detail, it is nevertheless concerning if the message broadcast to the wider world is that employers may now discriminate on the basis of religion. Muslim women are already among the groups with the lowest employment rates, and anything that discourages them further from taking up employment is to be deprecated. As Ms. Achbita demonstrated, her faith was much more precious to her than her job. 

Integration, whether in society or the workplace, is about people working together towards a common goal, however different they are. Social integration can never be achieved if our plan for doing so is to force everyone to first believe, think, behave and dress the same way. People work best when they are allowed to be themselves in the workplace, and this means at least tolerating their diversity, if not encouraging it. Employers would be well-advised to remember this when they consider imposing restrictions on their staff, even where allowed to do so by law.

Shoaib M Khan is a human rights lawyer and media commentator. He tweets at @ShoaibMKhan.

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