Can Employers Ban Headscarves in the Workplace?
Muslim employee sacked for refusing to remove headscarf in France
The law on religious headgear is back in the news this week after a European Court lawyer gave a legal opinion that a ban on headscarves in the workplace amounted to religious discrimination.
A French female Muslim IT engineer was asked to remove her Islamic headscarf by her employer following a complaint from a client. The employer had a ‘neutrality’ policy prohibiting staff expressing or displaying religious beliefs when with clients. She refused so her employer dismissed her.
She brought a claim against her employer in the French courts which referred the case to the European Court of Justice. The question before the European Court was whether the employer’s neutrality policy and the requirement not to wear an Islamic headscarf could be a genuine and determining occupational requirement to do the job.
Legal opinion in European Court of Justice
Advocate General of the European Court of Justice, Eleanor Sharpston QC, giving her opinion in the case, said the employer was guilty of religious discrimination for dismissing the Muslim employee for refusing to remove her headscarf while at work.
She went to on say there may be circumstances where there is a genuine requirement for banning religious headgear in the workplace, for example on grounds of health and safety in a factory with dangerous equipment. However she said these exceptions will be rare and could only apply where a ban was absolutely necessary to undertake the work.
Different legal opinion in Belgium case
There was a similar case in the European Court a couple of months ago from Belgium which resulted in a different legal opinion being given in that case.
It will be interesting to see how the Court decides these two cases given the conflicting opinions.
In the Belgium case a female Muslim was employed as a receptionist by her employer at the premises of its client. Her employer introduced a similar neutrality policy banning workers from wearing any visible symbols expressing their political, philosophical or religious beliefs whilst in the workplace.
She was sacked for refusing to attend work without her headscarf. She also pursued a claim for discrimination on the grounds of her religion in the Belgium courts which referred the case to the European Court of Justice.
Advocate General Kokott, giving her opinion in that case, said that the employer was not guilty of religious discrimination and that the neutrality policy requiring the removal of the headscarf could be justified as long it was applied equally to all.
She drew a distinction between discrimination on the grounds of natural characteristics such as race, sex etc. over which an individual does not have a choice and other characteristics like religious identity over which she said an individual does have choice.
Where does the law stand now?
The legal opinions of the Advocate Generals’ in these cases are just that: opinions, albeit they are opinions of legal experts of the European Court of Justice. They may or may not be followed by the judges of the European Court of Justice when they give their verdicts in both these cases. The judgments are being eagerly anticipated and may have far reaching consequences for equality rights across the European Union.
Whilst we wait for the European Court to give its judgment in both these cases there is obviously some uncertainty about what protection the law currently gives to Muslim women who want to wear a headscarf to work or indeed to others who want to wear other religious headgear or dress.
If your employer is making you remove an item of clothing worn for religious or other reasons or you know of a colleague who faces such a situation do get in touch with Monaco Solicitors. We find that most cases can be resolved by negotiation and settlement and we advise employees not just about the law but about their options and tailor the approach to suit individual circumstances.