I am dismayed by a recent EU Court of Justice ruling that could have far reaching consequences for freedom of religious expression. The story goes like this.
National courts in France and Belgium recently used a special procedure to suspend consideration of two cases. The cases involved Muslim women dismissed from their employment for refusing to remove their headscarves at work. The national courts used the special procedure so they could get the cases referred to the EU Court of Justice in Luxembourg for an interpretative ruling. The EU Court was being asked to determine whether the women’s dismissals constituted discrimination within the meaning of the EU Employment Equality Directive 2000.
The Court determined that an entity’s internal rule prohibiting the visible wearing of a political, philosophical or religious symbol does not constitute direct discrimination. It added that national courts should consider the evidence of the specific cases. National courts should decide whether the entity’s rule might lead to indirect discrimination by putting persons of a particular religion or belief at a specific disadvantage. The national court should judge on that basis. But the EU Court’s ruling seems to remove the right of appeal to Europe if someone feels they have been subject to discrimination on grounds of wearing religious symbols or dress.
I am disappointed and concerned by this ruling from the Court in Luxembourg. Far from upholding the EU’s famous slogan of ‘unity in diversity’, it seems to be allowing private employers to be intolerant of diversity. It is particularly surprising in view of a ruling of the European Court of Human Rights in Strasbourg made against British Airways. You may remember when BA sought to prevent a Christian stewardess from wearing a cross visible over her uniform. Back then, the Strasbourg judges stated that BA’s refusal to allow Mrs Eweida to visibly wear her cross:
‘amounted to an interference with her right to manifest her religion…this is a fundamental right because a democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others.’
Previous Strasbourg court rulings have only permitted the banning of religious symbols or clothing on grounds of health and safety or in the public services of constitutionally secular states.
Dealing with difference within civil society is currently a critical issue across Europe. As Anglicans, we have a long history of tolerating difference. The suppression of freedom of expression, by trying to make difference invisible, will only stoke the fires of extremism. Recently, my Attaché attended a seminar that explored research into how young Belgians are lured into joining jihadist movements. Perceived discrimination in finding a job, including the experience of employers who won’t take anyone wearing a headscarf, was one significant factor. A leading member of the British Conservative group in the European Parliament (Sajjad Karim MEP) put it this way:
“Today’s ruling in effect means Muslim women and people from other religious groups have to choose between their fundamental right to religious expression and access to the labour market. This is unacceptable and will only isolate people with religious convictions who wish to express their belief.”
Britain has had a long and exemplary history of pioneering the principle of ‘reasonable accommodation’ in matters of religious dress. For instance, Sikhs have been allowed to wear turbans as part of their army uniforms. Britain has even allowed turbans instead of crash helmets on a motor bike. But sadly, in the Eweida case, the British Government tried to argue that loss of employment did not constitute a denial of rights, because the plaintiff could always seek other employment. They said:
‘The fact that these applicants were free to resign and seek employment elsewhere, or to practise their religion outside work, was sufficient to guarantee their Article 9 rights under domestic law.’
The judges in Strasbourg rightly saw through that and ruled in Eweida’s favour. It is a shame that the EU judges in Luxembourg have not seen fit to come to the same conclusion for these two Muslim women. There remains the possibility for the national courts to rule in their favour on the basis of indirect discrimination. But an important principle has been conceded. Freedom of religious expression is a precious right, and it is sad to see it eroded.
 Judgment on ECJ cases C-157/15 & C-188/15 – 14.03.2017
 ECtHR judgment on application no. 4820/10 (Eweida v. the UK) 15.01.2013