Newspaper reports stating employers can ban Muslims from wearing headscarves at work are ‘hugely misleading’, say lawyers

Fact-check time

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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26 Comments

Anonymous

It’s all rather moot now as the EU’s days are numbered. The Europeans can keep their Islamophobic policies, Britain is better than that.

(6)(7)
Anonymous

From Anti-Semitism in the 20th century to Islamophobia in the 21st, Europeans sure love their bigotry. We Brits thought we could reform them, but clearly not.

(4)(5)
Pepe the Frog

This post has been removed because it breached Legal Cheek’s comments policy.

(1)(3)
Anonymous

This is misleading. The judgement is that employers can ban people wearing religious symbols and that includes all religions.

Nice try though. Next time King, double check your facts, as opposed to merely relying on the liberal hysteria you read on huffington post.

(11)(12)
Anonymous

Maybe read the article, not just the headline

Nice try though. Next time Anonymous, if you’re going to be a condescending dick criticising journalists on legal websites, at the very least spell ‘judgment’ correctly. That shit is entry level.

(17)(11)
Anonymous

There is no definite spelling of judgement/judgment it is commonly used interchangeably and is one of the oldest arguments of time.

Nice try though. Next time you try to pick on someone, at least pick on them for a good reason.

(7)(8)
Anonymous

Judgment is the only correct spelling for the decision of a court.

(15)(2)
Anonymous

I think the Oxford English Dictionary trumps you.

Case closed.

(3)(7)
Oxford Dic

Oxford English Dictionary: “In British English the normal spelling in general contexts is judgement. However, the spelling judgment is conventional in legal contexts.”

(4)(0)
Anonymous

Good, we’re all tired of the preferential treatment that Muslims receive due to political correctness that has turned the people of many European countries into cucks

(11)(21)
Anonymous

Try actually reading it first. Then, when you comment, you might actually be able to make some sense and not sound like a complete moron.

(8)(3)
Proelia

I wear a great helm over a bascinet for those contentious meetings. Nobody has objected.

(4)(0)
Not Amused

We have accommodated sikhs in this country for 150 years. Indeed we have always tolerated people of other religions. That is why we wrote the ECHR – to help out our continental cousins who had been less tolerant.

This case sits ill with me. I would far rather have these issues decided domestically.

(17)(6)
Anonymous

However much you’d like to separate the legal from the social, they are inherently linked. The UK regulations on religious belief protect any genuinely held belief. This has been held to include no belief and (for example) a strongly held belief in protecting the environment. Employers should not have to test whether dress that individuals wear is a required tenet of their faith. For example, of a “Pastafarian” who has a deeply held belief in the flying spaghetti monster wants to wear a colander on his head at work, they should be able to point to a policy which shows why this is not allowed, and consistent with other people who have similarly held beliefs in something which is not objectively provable (like a Christian God or Allah in Islam).

Religion isn’t just the mainstream anymore, because of the decisions which the Courts have made. IMO it should not the be duty of the employer to police whether an employee has a deeply held belief or their choice of clothing or symbol is a manifestation of it, especially as non-mainstream beliefs have been held to be protected by law. The only way to provide a degree of certainty is to say that an employer may have a blanket ban, which may have an impact on lots of groups but discriminate directly against none, or say that anyone – ANYONE – can have a belief and their own symbol or clothing.

(2)(0)
Not Amused

No. There is a third way.

Indeed it is the job of competent jurists to steer the common law along this third way. If we wanted straightforward binary choices then law would be easy (and tyranny).

(3)(0)
Pasta la vista

Pasta God sounds just as plausible as any of the others I’ve heard of. I’m going to get my Penne to sign up.

(6)(0)
Anonymous

I see what you mean, but this is a kind of ‘freedom’ that simply doesn’t chime with the Anglo-Saxon way of thinking. In France, for example, religious dress/symbols are banned in public buildings/institutions, etc. In order to ensure that everybody can be ‘free’ in those places, the freedom of persons normally wishing to display their religious beliefs is curtailed. From an Anglo-Saxon juridical/political perspective, the French way of thinking is nonsense. Freedom means freedom, end of (unless the free act is certain to cause damage/severe distress to others, etc.)

(0)(1)
Anonymous

Here’s the obvious solution to this – the policy is now that you can wear whatever religious symbol you want, provided that the symbol itself isn’t actually a weapon in disguise and that you look appropriately presentable for the job that you are doing. Note: the terms ‘religious symbol’ and ‘weapon’ to be given their ordinary meaning.

The truth is that this isn’t really about smart dress at work – it’s simply the case that in some European countries there is a fear or deep dislike of a woman in a hijab, and a determination to take away her agency (a good example is the 3 X Ludin cases in Germany). If we actually want to resolve this issue, then we need to talk about what is really going on, not have a proxy-debate over simply the legal rights. Perhaps the place to have this debate is somewhere else (and presumably, not on the internet!) but as we are all thinking about this case, we do ourselves all a favour to look not only at the legal but the societal points surrounding it.

(2)(0)
Lawyer

As an atheist I have no aversion at all to people wearing crosses or Sikh turbans or skull caps. However, I will openly accept that I find burqas offensive. They represent the belief that women should retreat from society and should cover everything that they are to avoid “tempting” poor helpless males.

(3)(1)
Anonymous

But the burka is a form of Islamic cultural dress; nothing to do with proving the woman’s Muslim-ness. This is where many European countries are fundamentally getting it wrong.

(0)(4)
Anonymous

I can appreacite why you might hold this view. I’m certainly of the opinion that no woman should be told how to dress whether that pertains to burqas or even extending to having to wear long skirts or heels or anything along those line.

You might be surprised at how many women choose to wear burqas because they feel comfortable in it. We should forget about how the need for burqas arose in the past and just focus on letting people dress in a way that they feel comfortable.

I’m not religious at all by the way, just my thoughts.

(0)(0)
Anonymous

What nobody in these European high-and-mighty institutions is willing to accept, is that some European countries are simply crap at integrating immigrants from Islamic countries, many of whom are Muslims. The UK is hardly a paragon of virtue on this front, but we’ve done a damn-sight better than countries in the Eastern bloc or even France.

(1)(0)
Anonymous

Exactly. Our continental cousins struggle with tolerance.

(1)(0)

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