It is important not to overstate what the European Court of Justice has said in relation to the wearing of headscarves and all other religious and political symbols in the workplace.
The ruling applies only to EU law; it does not affect the protection which individuals could claim under the Human Rights Act and the European Convention on Human Rights. Employees remain free to challenge any bans on human rights grounds, wherever they work (how successful such applications tend to be is, admittedly, a separate question).
Even in relation to EU law, the statement by the ECJ is of limited impact. A prohibition cannot directly discriminate against any religious or ethnic group, so it would have to apply to all religious symbols. It would not, for example, be permissible to forbid Muslim women to wear a hijab but allow Christian employees to have a visible cross.
If a general ban causes particular disadvantage it will be indirectly discriminatory. Indirect discrimination may be permitted, but only if it is a proportionate way of achieving a legitimate aim. Pandering to racial or religious prejudices of clients, for example, would not be legitimate.
Therefore, a ban which satisfied the requirements of EU law may be difficult to achieve in the real world and could still be challenged under human rights protection. Consequently, the position of religious workers has not been as dramatically damaged by the ruling as some media reports suggest.
Tom Lewis and Helen Hall, reader and lecturer, Nottingham Law School (part of Nottingham Trent University)
