A controversial decision from the European Union’s highest court has given employers the right to ban staff from wearing visible religious symbols such as the burka and hijab.
The European Court of Justice ruled that company policies or contract clauses that restrict religious symbols not necessarily discriminatory – as long as they encapsulate all religious symbols, rather than just targeting one religion.
"An internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination," the court said in a statement.
It also noted that a company’s wish to project a neutral image was legitimate but said customers cannot simply demand workers remove headscarves if the firm has no policy in place which bans religious symbols.
The decision came as the court gave a joined judgment in the cases of two women – one in France and the other in Belgium – who were fired for refusing to remove headscarves.
In the Belgian case, receptionist Samira Achbita was fired from her role when, after three years with the firm G4S, she decided to start wearing a headscarf at work for religious reasons. The company dismissed Achbita on the basis that she had broken unwritten rules prohibiting religious symbols.
Ultimately, the court ruled that Achbita’s firing was fair because G4S had a blanket rule against all political, philosophical and religious symbols, therefore it was indiscriminate.
“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,” the court explained.
“The rule thus treats all employees to the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally.”
However, in the French case, design engineer Asma Bougnaoui was fired from IT consultancy Micropole after a customer complained his staff had been “embarrassed” by Bougnaoui’s headscarf when she was on-site to give advice.
Bougnaoui had been warned before taking the job that wearing a headscarf might pose problems for the company’s customers but the court still went on to rule she had suffered discrimination.
It was decided that Bougnaoui had been “professionally competent” and was sacked only because she had refused to remove the garment.
The court stressed that customers’ wishes not to be served by a worker wearing a headscarf did not give companies a get-out clause from EU anti-discrimination law.
While the decision has far-reaching implications in Europe, one Wellington-based employment lawyer says there is still some ambiguity in New Zealand thanks to a dearth of similar situations.
“There is a distinct lack of reported Court cases in New Zealand on the issue of religious clothing in the workplace, as most cases appear to be settled privately,” says Andy Bell, of Wellington-based Bell & Co.
“This makes it difficult to provide clear and precise guidance as to how the legislation is practically applied.”
While few previous cases address the issue, Bell says there is well-established legislation that can provide valuable guidance to employers.
“The blanket rule in the employment context is that discrimination based on religious practices or beliefs is not permitted,” he told HRM.
“An employee generally cannot be dismissed, retired, or forced to resign due to their religion [and] an employer must also afford employees the same conditions of employment, benefits, opportunities, promotions and transfers of the same or similar qualifications, experience or skills,” he stressed.
“Accordingly, the general rule is that an employee cannot be dismissed or otherwise discriminated against in New Zealand as a result of wearing religious clothing in the workplace, such as a headscarf.”
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