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Headscarf ruling changes expectations in discrimination cases, says expert

A ban on wearing headscarves in the workplace may be admissible if it is based on a general company rule prohibiting political, philosophical and religious symbols from being worn visibly, an advisor to the EU's highest court has said.31 May 2016

In an opinion on a case brought by a Muslim woman fired by Belgian security company G4S, advocate general Juliane Kokott said that there was no direct discrimination on the grounds of religion if the ban was founded on a general rule, and not on stereotypes or prejudices against one or more religions, or against religious beliefs in general.

The opinion approaches the issue "far more from the point of view of the employer than earlier decisions on this point", employment expert Linda Jones of Pinsent Masons, the law firm behind Out-Law.com, said.

"It seems that the expectation has shifted from requiring the employer to show flexibility in matters of religious dress to the employee being expected to show flexibility," Jones said.

Advocate general Kokott said that the G4S ban may constitute indirect discrimination, but may be justified in order to enforce a legitimate policy of religious and ideological neutrality by the employer, so long as the "principle of proportionality" is observed. The ban in this case should be regarded as proportionate, she said.

This was an "extremely interesting and somewhat surprising judgment", Jones said. "It seems to suggest that the reason behind an action is relevant to whether an employer has directly discriminated, which could provide a fertile ground for future litigation," she said.

"As far as indirect discrimination is concerned, G4S clearly had a policy in place that placed the claimant at a disadvantage, as a Muslim woman who wanted to wear a headscarf. However, the advocate general held that G4S had a legitimate aim in wanting to remove religious symbolism from the workplace in order to further their policy of neutrality, and that their actions in banning the headscarf could be a proportionate way in which to implement the ban," she said.

"The distinction was drawn between religious belief and other forms of discrimination, with the advocate general noting that while individuals cannot leave their skin colour, gender, sexuality, disability or age 'at the door' when going to work, a person of religious belief can be expected to modify their dress code and other religious practices, suggesting that religious practices are a matter of choice," Jones said.

"The advocate general also commented that G4S’s policy was capable of being a genuine occupational requirement given the very diverse nature of its client base and the face to face contact that employees have with those clients," she said.

In previous cases where, for example, employees have been banned from wearing crucifixes to work, the emphasis has been on the employer having to prove that a ban was necessary, Jones said.

In this case, however, the advocate general accepted that the ban was necessary to implement its policy of neutrality.

"[That] is a lower hurdle for the employer than having to show that a ban is absolutely necessary, for example for health and safety reasons," Jones said.

Opinions of advocate generals are not binding on the Court of Justice of the European Union, but are often influential.

"It will be well worth looking out for the decision in this case for further guidance on this sensitive issue," Jones said.