When a ban on Muslim dress may not be discrimination at all

Are there instances when employers can legally ban the wearing of Muslim headscarves in the workplace?

Although on the face of it such a ban may seem wrong, and certainly controversial, the answer is that it can sometimes be allowed, says Tayside based solicitors and estate agents Miller Hendry.

A recent opinion by Advocate General Juliane Kokott concerning a Muslim employee at a Belgian company proved this point, because the employer’s ban stemmed from a general ‘neutrality’ policy in the workplace.

Three years into her employment at a Belgian security company, the employee began wearing a headscarf at work, despite a company rule which prohibited the wearing of any visible signs of political, philosophical or religious beliefs. She was dismissed and appealed to the Belgian Constitutional Court, which then posed the question to the European Court of Justice.

Advocate General Kokott considers that, because the neutrality policy is not limited to religious beliefs, it could at most amount to indirect discrimination. Even then, it could be objectively justified as an occupational requirement, says Kokott, who gave her opinion in advance of a European Court of Justice judgement on religious discrimination.

Kokott also argues that the neutrality policy is what distinguishes the Belgian case from the high-profile one of Nadia Eweida, a British Airways check-in worker who was told by BA she couldn’t wear a cross at work. Eweida took her fight to the European Court of Human Rights and won. In the BA case, a neutrality policy had not been applied consistently, says Kokott.

Alan Matthew, employment specialist at Miller Hendry, said:

“The big questions surrounding this case in Belgium were: Is it or is it not direct employee discrimination? Can a private employer lawfully prohibit a Muslim employee from wearing a headscarf in the workplace? And as controversial as the ruling may seem at first, it makes legal sense when you take into account a general workplace policy that bans any such headwear.

“As ongoing religious discrimination cases are continuing to demonstrate, this is a murky area for employers and employees and one we all have to watch and learn from closely.”

For further advice or information on employment law or other legal issues, visit www.millerhendry.co.uk