Workplace Regulations on Headscarves in 2020

By Andrej Poruban (Alexander Dubček University, Trenčín, Slovakia)

It is established that the EU has law on religious equality but many employers across Europe have wrestled with the issue of the wearing of headscarves at work. It is well known that the rules mean a specific discomfort especially for Muslims.

The question of when can employers ban their staff from wearing headscarves has been considered in some legal proceedings. Some rulings have attracted a lot of attention. For example, direct and/or indirect discrimination has been considered in two famous preliminary references before the Court of Justice of the European Union, Achbita and Bougnaoui. (See more: EELA Members | EELC Subscribers). On national level we can read about decisions in Germany (EELC 2020/4: EELA Members | EELC Subscribers) or Italy (EELC 2016/39: EELA Members | EELC Subscribers). All these cases have one main common feature. Applicants used to wear the hijab, the Islamic veil that covers the head and the chest.

But one judgment is slightly different. The Oberster Gerichtshof dealt with full face veil (niqab) at work (EELC 2016/53: EELA Members | EELC Subscribers).  The Austrian Supreme Court has ruled that the general prohibition of Muslim face veils by an employer does not constitute unlawful discrimination. Firstly, the discrimination could not be justified that employees need to be identifiable, as the employee may still identify herself upon request. However, the Court held that one of the basic rules of interpersonal communication in Austria, especially in professional circles, is an uncovered face. Unimpaired communication and interaction with clients, co-workers and the employer is one of the main prerequisites to the employee fulfilling her obligations under the employment contract. This is especially true for an employee of a public notary which is worth noticing in this case.

Anyway, will this reasoning stand the test of time, because at present we have to consider unfavorable development of the epidemiologic situation? Some European countries decided that the obligation for individuals to wear facemasks in specific environments will be reintroduced. Even more and more employers create an own protective respiratory equipment policy for the establishment to protect health and safety. The employees are required to wear facemasks, scarfs, respirators, or drapes when in contact with colleagues and customers. Under given circumstances the employers can no longer absolutely rely on the ratio decidendi that uncovered face is a prerequisite to proper communication. Of course, every justification would be based on a case-by-case assessment but wearing various facemasks still could be replace by other protective measures to minimise the risk of infections such as plexiglass shields. Last but not least, speaking from 2020 experience it's hard to say what the future holds.