Muslim clothing and freedom of religion are back in the headlines after a ruling by the Court of Justice of the European Union (CJEU).
It comes after several cities in the French Riviera banned the so-called ‘burkini’, or full-bodied women’s swimsuit in 2016, before being overruled by the country’s top administrative court. However, the court has now ruled against a woman suing her employer for religious discrimination. According to a YouGov poll, 42 per cent of British back the decision.
Dismissed for Wearing a Headscarf
Samira Achbita, a Muslim woman living in Belgium, brought the case against the private company G4S. She joined the firm as receptionist in 2003. There was already a rule in place prohibiting employees from wearing visible political or religious symbols in the workplace. G4S say it was put in place to project a neutral image to its customers.
Three years later Ms. Achbita informed G4S that she would begin wearing the Islamic headscarf. When the company dismissed her, she took her case to the Belgian Court. The Belgian Court referred the case to the CJEU, which ensures the law is applied the same way throughout the EU. The Belgian Court wanted advice on whether banning the headscarf violated the principle of equal treatment.
Discrimination on the Basis of Religion
Under anti-discrimination law, employers are not allowed to discriminate on the basis on religion or belief. In its ruling, the CJEU confirmed religious people can’t be discriminated against directly (because of their specific religion) or indirectly (where a neutral rule puts some groups at a disadvantage).
The Court decided Ms. Achbita had not been discriminated against directly. This is because G4S prohibited all religious symbols, not just those that belong to Muslims. The Court noted it was possible G4S’s rule could indirectly discriminate if Muslims are more affected than other groups. However, indirect discrimination can be justified if it’s for a legitimate aim. The CJE said G4S’s desire to project a neutral image fell into that category.
The Court added the rule would still have to be applied in an appropriate and proportionate way. Ms. Achbita, it suggested, could have been moved away from a customer-facing role rather than dismissed. The CJEU left it up to the Belgium national court to decide whether the G4S rule constituted indirect discrimination.
What it Means for Human Rights
The case raises important human rights issues, most significantly by suggesting that employers can ban religious symbols from the workplace in some situations.
The other take-away point here is that indirect discrimination is justified when it is for a legitimate aim. However, what is “legitimate” in particular work places will vary, as was seen in a pair of cases involving religious symbols in the Human Rights Court. Also, what is a legitimate justification in Belgium, where this case took place, may not apply to the UK.
The right to express our religion in public is protected by our rights in equality law and under the Human Rights Convention, but that right is not absolute. With cases like this one regularly coming before the courts, this is unlikely to be the final word on the issue.
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