The EU's top Court has ruled that private employers may ban staff from wearing Islamic headscarves and other visible religious symbols under certain conditions. As a country with increasing faith diversity in the workplace, Ireland must take note.
Tuesday’s major ruling was the first time that the Court of Justice of the European Union in Luxembourg, the ECJ, examined this contentious issue. It was found that a Belgian firm that had a rule barring employees who dealt with customers from wearing visible religious and political symbols in order to project a public image of neutrality may not be guilty of discrimination.
However, the ECJ also found that a French company that dismissed a software engineer for refusing to remove her headscarf may have breached EU laws barring discrimination on religious grounds if it did so on the basis that a particular client of the company objected.
The cases have been returned to the national courts for their decisions following the provision of guidance from the ECJ.
The issue of religion in the workplace has become increasingly topical in recent times.
Religious discrimination in the workplace is generally prohibited under the Employment Equality Acts. Ireland has so far not experienced the divisive litigation surrounding religious dress that other European countries have witnessed.
Controversy
The Garda Reserve turban controversy, however, provides a less than inspiring indication of how the State is prepared to accommodate the expression of faith in the workplace by those outside of the Catholic faith.
In 2007, a member of the Sikh community declined to take up his post in the Garda Reserve, having been informed that he could not wear his turban on duty. The Irish Sikh Council criticised the decision, arguing that police forces in the UK and the US permit the wearing of turbans. The Garda Press Office defended the move, stating that An Garda Síochána has, historically, been seen as providing an impartial police service, and that accommodating variations to the standard uniform would affect that traditional stance and image.
It is arguable that An Garda Síochána has a dubious claim to religious neutrality. The force regularly organises Catholic Masses and in terms of uniform, the Garda badge itself reflects Celtic Christianity, with four decorative circles positioned at each quadrant resembling a cross.
Furthermore, religious organisations are constitutionally entitled to a strong level of protection of their religious ethos. At the same time, the employees working for them also have the constitutional right to free profession and practice of religion, to equality, and to the right to earn a livelihood. Many Irish publicly-funded places of employment, notably schools and hospitals, espouse the Roman Catholic ethos. The exposure of employees of all faiths and none to an employer's particular religious ethos raises concerns as to freedom of conscience. In the case of primary schools, a near monopoly is enjoyed by the church, meaning that a truly viable alternative choice of employer is more fiction than reality.
All the trappings of Catholicism
If teachers want to wear Islamic headscarves or other visible symbols of minority faiths in our schools, can they be prevented from so doing? It may well be difficult for religious bodies to prohibit such forms of religious dress when the religious habits of nuns, and all the trappings of Catholicism, are permitted in what is a State-sponsored system.
Other countries have grappled with the issue, and lines have been drawn in the sand. In England, a bilingual support teacher who wore a veil which covered her face (niqab) when teaching with male colleagues was asked to teach unveiled. The school said it had evidence that the children did not engage as well with the support teacher when she was wearing her veil, and that it impacted on her effectiveness in her role. She was unsuccessful in her discrimination case against the school. The United Kingdom Employment Appeals Tribunal held that the refusal to allow the wearing of the veil was justified in all the circumstances of the case.
There are also examples of Muslim headscarf issues arising in private sector employment in Ireland. In 2012, a former Dunnes Stores sales assistant sued her employer for unfair dismissal, claiming that she was not permitted to wear a veil at work. The Employment Appeals Tribunal heard that Dunnes Stores staff wore a standard uniform of a blouse, trousers or a skirt, and a type of cardigan, and no alteration to the style of the uniform was allowed. Ultimately, the case was settled, and therefore no ruling issued.
As Irish society grows ever more religiously diverse, and at the same time, more secular overall, it is important that guiding principles emerge on the pressing issue of the place of religion in the workplace.
Claire Hogan is a barrister and has a doctorate in the area of constitutional freedom of religion