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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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Rarely has it mattered so little if Manchester United won; rarely has it been so special they did

Team's Europa League victory offers chance for sorely needed celebration of a city's spirit.

Carlo Ancelotti, the Bayern Munich manager, memorably once said that football is “the most important of the least important things”, but he was only partly right. While it is absolutely the case that a bunch of people chasing around a field is insignificant, a bunch of people chasing around a field is not really what football is about.

At a football match can you set aside the strictures that govern real life and freely scream, shout and cuddle strangers. Football tracks life with such unfailing omnipresence, garnishing the mundane with regular doses of drama and suspense; football is amazing, and even when it isn’t there’s always the possibility that it’s about to be.

Football bestows primal paroxysms of intense, transcendent ecstasy, shared both with people who mean everything and people who mean nothing. Football carves out time for people it's important to see and delivers people it becomes important to see. Football is a structure with folklore, mythology, language and symbols; being part of football is being part of something big, special, and eternal. Football is the best thing in the world when things go well, and still the best thing in the world when they don’t. There is nothing remotely like it. Nothing.

Football is about community and identity, friends and family; football is about expression and abandon, laughter and song; football is about love and pride. Football is about all the beauty in the world.

And the world is a beautiful place, even though it doesn’t always seem that way – now especially. But in the horror of terror we’ve seen amazing kindness, uplifting unity and awesome dignity which is the absolute point of everything.

In Stockholm last night, 50,000 or so people gathered for a football match, trying to find a way of celebrating all of these things. Around town before the game the atmosphere was not as boisterous as usual, but in the ground the old conviction gradually returned. The PA played Bob Marley’s Three Little Birds, an Ajax staple with lyrics not entirely appropriate: there is plenty about which to worry, and for some every little thing is never going to be alright.

But somehow the sentiment felt right and the Mancunian contingent joined in with gusto, following it up with “We’ll never die,” – a song of defiance born from the ashes of the Munich air disaster and generally aired at the end of games, often when defeat is imminent. Last night it was needed from the outset, though this time its final line – “we’ll keep the red flag flying high, coz Man United will never die" – was not about a football team but a city, a spirit, and a way of life. 

Over the course of the night, every burst of song and even the minute's silence chorused with that theme: “Manchester, Manchester, Manchester”; “Manchester la la la”; “Oh Manchester is wonderful”. Sparse and simple words, layered and complex meanings.

The match itself was a curious affair. Rarely has it mattered so little whether or not United won; rarely has it been so special that they did. Manchester United do not represent or appeal to everyone in Manchester but they epitomise a similar brilliance to Manchester, brilliance which they take to the world. Brilliance like youthfulness, toughness, swagger and zest; brilliance which has been to the fore these last three days, despite it all.

Last night they drew upon their most prosaic aspects, outfighting and outrunning a willing but callow opponent to win the only trophy to have eluded them. They did not make things better, but they did bring happiness and positivity at a time when happiness and positivity needed to be brought; football is not “the most important of the least important things,” it is the least important of the most important things.

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