Headscarf ruling reminds us that religious freedom is not absolute

Stephen Evans is Director of campaigns at the UK’s National Secular Society and a regular media commentator on religion and belief issues.

The European Court of Justice provoked considerable controversy last month when it decided that banning the wearing of headscarves in the workplace could be lawful if part of a general policy barring all religious and political symbols.

The Court, judging a case referred from Belgium, held that a ban on wearing visible signs of political, philosophical or religious beliefs did not amount to direct discrimination. But a ban could amount to indirect discrimination unless such a policy could be justified by a legitimate aim and the means of achieving that aim were appropriate and necessary.

Security company G4S Secure Solutions had an unwritten policy banning the wearing of all visible signs of political, philosophical or religious beliefs. When a Muslim receptionist, Samira Achbita, said that she wanted to start wearing a headscarf, G4S explained that this would contravene company policy. G4S approved an amendment to the workplace regulations, to put the prohibition in writing. The policy stated “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/or from giving expression to any ritual arising from them.” Achbita was dismissed.

The Court held that G4S’s “position of neutrality” in its contacts with customers was a legitimate aim if it applied only to employees dealing with customers directly.

The test of legitimacy and proportionality will be context-sensitive and, ultimately, for national courts to decide. What constitutes ‘reasonable’ will inevitably vary depending on the national identity of the EU member state concerned. This is reflected in the fact that G4S operates a neutral clothing policy only in Belgium, which has a deep-rooted custom of neutrality. But from a British perspective, the recent ruling will change nothing. As a spokesperson for G4S in the United Kingdom, where the company has its global headquarters, said: “We work hard to create an inclusive environment for our employees in all countries where we operate. The recent opinion issued by the advocate-general in a case in Belgium will not affect our UK business.”

This is because the court’s opinion simply mirrors existing British equality and anti-discrimination law, which protects diversity and promotes social cohesion by offering the same level of protection of religious minorities as anyone else. Such laws protect the rights of individuals to manifest their religion or belief, but clearly there is sometimes a balance to be struck. The right to manifest a religious belief is not absolute. The European Court of Justice ruling simply reflects this.

The reactions of press and social media to the judgment were perhaps more problematic than the judgment itself. The ruling was seized upon by both the far-right and the regressive left to further their narratives. Judicious analysis made way for clickbait sensationalism. Headlines around Europe suggested that employers now had a free reign to prohibit headscarves and other items of faith.

The actual ruling was far more nuanced than this, but that didn’t stop those peddling victimhood from claiming that the ruling represented the enshrining of ‘Islamophobia’ into law. One British commentator went as far as to claim that the ruling was a clear sign that “Islam and Muslims are no longer welcome in Europe”.

Overblown rhetoric such as this is not only way off the mark, but it seriously risks damaging efforts to integrate religious minorities by promulgating a false and divisive narrative. Such commentators also fail to recognise the many efforts that have been made to integrate religious communities. As long ago as 2001, London’s Metropolitan Police Service accommodated the hijab as an optional part of the force’s official uniform, and many other police forces have since done the same.

Concerns about the potential harm that restrictions on religious clothing could inflict on integration of religious minorities are valid. It is in nobody’s interest – other than hard-line Islamist clerics – to further marginalise and push Muslim women out of public life. But that doesn’t mean that liberal Western democracies must sacrifice principles they hold dear to accommodate every religious demand.

Islam has many faces, and social cohesion will not be best served by capitulating to demands from interpretations of Islam that care nothing for liberal pluralism.

The case concerned the Muslim headscarf specifically, but the principle applies to the wearing of any form of religious clothing. There are clearly circumstances where it will be both reasonable and appropriate for businesses to restrict the wearing of the full Islamic face veil. This judgment allows for that. But there is however nothing in the ruling that should worry religious minorities or embolden the far-right.

The judgment simply acknowledges that there may be circumstances where a business may wish to place restrictions on employees manifesting their beliefs in the workplace, and doing so may be legal, provided that workplace clothing rules are applied equally across the board, and that the company’s actions are fair and reasonable. This is a high barrier.

A secular state that is fair to all its citizens – a state based around common citizenship rather than religious identities – is the best model for promoting social cohesion and guaranteeing freedom of religion and belief. Such states should be open to plurality, but at the same time willing to defend their principles in the face of Islamic exceptionalism.