Newspaper reports stating employers can ban Muslims from wearing headscarves at work are ‘hugely misleading’, say lawyers
The press’ coverage of a European Court of Justice (ECJ) ruling on Muslim dress in the workplace is misleading, according to lawyers.
Today, the ECJ made its long-awaited ruling in the Achbita and Bougnaoui cases (preliminary references on banning certain dress in the workplace and how this fits with equal treatment obligations).
Media coverage of the cases state that the court has decided it is lawful and not discriminatory for employers to ban their employees from wearing Islamic headscarves and other religious symbols. It’s worth noting a number of these headlines appeared when judgment in the two cases had not yet become available, so it’s likely the media was relying upon a press release detailing the facts and the reasons for the judgment.
However, while the ECJ did state that a rule banning workers from outwardly wearing their “political, philosophical or religious beliefs in the workplace” is not directly discriminatory (because it applies to all employees), this alone does not quite reflect the outcome of the case. The press release states:
[S]uch a prohibition may constitute indirect discrimination if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage.
If it is decided that the company policy is indirectly discriminatory (perhaps because it may put religious people at a disadvantage over their non-religious peers), the company will have to objectively justify it to the national court. Henderson Chambers barrister Paul Skinner believes this “would be quite hard to do”, and points out the ECJ specified that subjective customer preference cannot be used to justify the ban.
For these reasons, Skinner thinks the press’ reporting on this case has been “hugely misleading” because it has focused “only on the issue of direct discrimination, when the more significant part of the judgment relates to the question of justification”.
Kevin Poulter, an employment law specialist and partner at Child & Child, echoes Skinner. He told us:
The press do seem to be scaremongering. The judgment applies only to direct discrimination, but a company policy which universally disallows the visible manifestation of religious belief may be indirectly discriminatory. As the ECJ says, it will be for national courts to determine this on a case by case basis.
And so too does human rights specialist Shoaib Khan, who said:
Despite the cursory headlines, there is a lot for employers to consider, rather than just thinking the court has ruled that Muslim women can be banned from wearing the headscarf.
This isn’t the first time the UK press has done a European judgment a disservice.
As explored by Legal Cheek at the time, the media went potty over a European Court of Human Rights (ECtHR) judgment which, apparently, said that employers could now legally snoop through their employees’ personal Whatsapp messages. In fact, the messaging account in the case was set up to answer clients’ queries, so was not actually a personal account at all. Plus, as all law students will know, the UK is not “bound” to follow ECtHR rulings, as some newspapers were reporting.
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