AN OUTRIGHT ban on wearing religious symbols or clothing at work is unlikely to be justified despite a landmark European ruling offering employers the right to prohibit the practice, a leading discrimination law expert has warned.
The European Court of Justice (ECJ) has ruled that workplace bans on the wearing of “any political, philosophical or religious sign” such as headscarves need not constitute direct discrimination.
But the ban must be based on internal company rules requiring all employees to “dress neutrally” and cannot be based on the wishes of a customer.
The ECJ judgment was sparked by the case of a woman who was fired from her job as a receptionist at security firm G4S in Belgium.
Amanda Jones, of law firm Maclay Murray & Spens, said that despite there having been no reported cases of employers seeking to institute such bans the ruling could have ramifications in Scotland.
Ms Jones, who also chairs the Scottish Discrimination Law Association, said that the ECJ ruled that such a ban may amount to indirect discrimination, national courts could be required to consider whether the policy “was a proportionate way of achieving a legitimate aim”.
She added: “It is likely therefore that any Scottish company or public body which operated a prohibition on staff wearing items of religious significance would be likely to be justified, where doing so impacts on their ability to perform their duties. However, it is less likely that a prohibition simply on the wearing of such items is likely to be justified. “
In England in 2007 a teaching assistant was prohibited from wearing a veil covering most of her face so pupils could not see her facial expressions, a policy, Ms Jones said, which was accepted as proportionate.
Also in 2007 a female British Airways worker was told she was not permitted to wear a cross which was visible while at work but that policy has now changed.
The subject of the ECJ case, Samira Achbita, was dismissed in June 2006 after insisting on wearing the Islamic headscarf at work. She challenged her dismissal in the Belgian courts, which referred the case to the ECJ in relation to interpretation of an EU directive on equal treatment in employment and occupation.
The Court of Justice found that G4S’s internal rule refers to the wearing of visible signs of political, philosophical or religious beliefs and therefore covers any manifestation of such beliefs without distinction.
A summary setting out the ECJ’s findings said: “The rule thus treats all employees of the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally.
“It is not evident from the material in the file available to the court that that internal rule was applied differently to Ms Achbita as compared to other G4S employees.
“Accordingly, such an internal rule does not introduce a difference of treatment that is directly based on religion or belief, for the purposes of the directive.”
The ECJ also considered the case of French design engineer Asma Bougnaoui, who lost her job after a customer complained that she wore an Islamic headscarf. The court ruled such bans could not be based on “subjective considerations”.
Chief Rabbi Pinchas Goldschmidt, president of the Conference of European Rabbis, said: “This decision sends signals to all religious groups in Europe. With the rise of racially motivated incidents, its faith communities are no longer welcome. Political leaders need to act to ensure that Europe does not isolate religious minorities and remains a diverse and open continent.”
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