Getting Your Head Around the ECJ Headscarf Ban

The recent ruling by the European Court of Justice (ECJ) has drawn a lot of attention to discrimination in the workplace both in Ireland and in the wider European community. While many have suggested it could open the door to blanket discrimination, the ECJ has defended its position.

This is in circumstances where the ban is on the wearing of “any political, philosophical or religious sign” and is subject to internal company rules which require all employees to “dress neutrally” and applies to all religious or philosophical signs across the board equally. The Court followed up by stating any dismissal must be on foot of such a rule and cannot be based on the opinion or request of a customer.

In the circumstances of the case, a receptionist was dismissed for wearing headscarf to work in Belgium after three years of service at the company. However, there was an “unwritten rule” in the company banning religious symbols of “any manifestation of such beliefs without distinction”, which was subsequently written explicitly in the internal work relations following her dismissal.

The Court stated a company has a right to project an image of neutrality once it is applicable to all religions. The company has a duty to show that they have also not enabled indirect discrimination – whereby people adhering to a particular religion are in practice put at a particular disadvantage, unless that is “objectively justified by a legitimate aim” achieved by means that are “appropriate and necessary”. For instance the company would have to try to offer the person a different position before dismissal, such as a position away from visual interaction with customers.

While the decision was criticised by Amnesty international as “disappointing” and giving “greater leeway to employers to discriminate against women – and men – on the grounds of religious belief”, the British Humanist Association said: “We need to take an approach that balances everyone’s rights fairly and we are pleased that the European Court of Justice has today appeared to reinforce that principle.”