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European Court of Justice finds some discrimination legal

The European Court of Justice (ECJ) has recently determined two cases regarding the banning of religious dress in the workplace, specifically, Islamic headscarves.

The first case was referred to the European Court of Justice (ECJ) by the Belgian Courts. Samira Achbita had been a receptionist for the Belgian branch of G4S, the London-listed outsourcing and security company when, after three years at the firm she decided to start wearing a headscarf at work for religious reasons. Achbita was fired in June 2006 for refusing to take off her scarf. The company claimed she had broken unwritten rules prohibiting religious symbols in the workplace.

In the second case, Asma Bougnaoui, a design engineer, was fired from an IT consultancy firm, Micropole, after a customer complained that his staff had been “embarrassed” by her headscarf while she was on their premises to provide advice. She had been warned before taking the job that there may be objections to her headscarf by the company’s customers.

In the first case the ECJ found that the policy imposed by the Company treated “all employees to the undertaking in the same way, notably by requiring them, generally and without any differentiation, to dress neutrally”.

A company’s wish to project a neutral image was therefore found to be legitimate and the Court allowed internal rules banning political, philosophical or religious symbols. “An internal rule or undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination”, the judgement reads.

In respect of the second case, the Court found that a customer’s wish not to be served by a worker wearing a headscarf did not give companies an excuse to ignore EU anti-discrimination laws.

The assumption in many European Courts since 2002 had been that religious symbols could not be banned from the workplace on anything other than safety grounds. Some commentators feel that the new judgement from the ECJ, which is more nuanced than a straight-forward ban, could sow confusion about which religious symbols can be worn at work.

Legal experts have commented that the latest ruling cuts across a precedent from the European Court of Human Rights (ECHR) that allowed crosses to be worn in the workplace. Steve Peers, a professor of EU Law at Essex University, says the latest ECJ ruling looks awkward when set against the ECHR judgement that wearing religious symbols is “sometimes an employee’s right to manifest freedom of religion”.

If you’ve been subjected to discrimination in the workplace based on your sex, race, age or ethnicity, contact Brazel Moore Compensation Lawyers on (02) 4324 7699 to speak to a lawyer today.

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