Religious practices and negative freedom rules

A German administrative appeal court has recently ruled against a Muslim female teacher suspended for wearing a headscarf in school. The teacher argued that the headscarf ban was a breach of her right to freedom of religious practice, but the courts followed the negative freedom logic in their judgments. Karen Seward, employment partner at Allen and Overy, and Hans-Wolfgang Arndt, Dean of Legal studies at Mannheim University, talk to Greg Bousfield ...

In the southern German state of Baden-Wuerttenburg, the state’s Administrative Court has controversially ruled (4 S 1439/00) on appeal against a Muslim female teacher suspended from service because she wanted to wear a headscarf while teaching.

The initial judgment, in the Stuttgart Administrative Court, also supported the state’s Minister for Education who argued that wearing a scarf breached public service neutrality requirements. The teacher argued before both courts that this breached her constitutional right to freedom of religious practice. The German constitution guarantees freedom of religion but also the right not to be exposed to religious beliefs, so-called "negative freedom". A central issue in the judgment was the scarf’s de facto proselytising function, especially in relation to the ‘negative freedom’ principle and teachers’ role model status for children, who are, in relation to religious choice, the legal responsibility of their parents until age 14. The teacher argued rather that the scarf was only an aspect of her belief. A court in another - northern - German state has recently made an opposite ruling, making the issue a candidate for a German Constitutional Court (BVG) clarification ruling.

"The legal issue is the extent of religious clothing," says Hans-Wolfgang Arndt, the Dean of the Legal Studies Faculty at the University of Mannheim. "A court could not ban religious clothing and objects. This might only occur when, say, a teacher appears in full orange Baghwan ‘habit’ or in some other way completely covered. I can’t see any problems with a headscarf as long as the person’s face is recognisable."

A constitutional ruling would be likely to favour the teacher’s case, Arndt believes, despite suggestions it would follow the ‘negative freedom’ reasoning behind the 1995 BVG "crucifix judgment" (1 BvR 1087/91) banning these objects from Bavarian non-religious school classroom walls. Part of that judgment was "that crucifixes ‘embodied suffering’ ", says Arndt.

In the UK workplace "if you want to discriminate against someone on religious grounds you are free to do so," says Karen Seward, a partner from Allen and Overy’s employment department. "The are only three types of unlawful discrimination in the UK. These are on the basis of sex, race and disability."

"UK courts have essentially decided that Muslims are a religious, not racial group, and therefore if an employer told someone they could not wear a Muslim headscarf in the office, that would be in principle admissible."

Religious discrimination "comes up quite a lot", says Seward. "People in this situation try to put a race or sex tag on it. For example, a woman argued successfully before an employment tribunal that she had to wear a trouser suit to work because she was required as a married Islamic woman to cover herself, invoking the inadmissibility of sex discrimination against someone just because they are married. In another case, the majority of a supermarket’s employees, all of whom wore traditional Pakistani dress, were dismissed. A tribunal accepted their argument of racial discrimination because they were a homogenous group."

What of the Human Rights Act? "This suggests a right to freedom of expression. People have started to argue, for example, that wearing nose rings or lots of jewellery to work falls into this category. However, because this Act applies only to the public sector, a private employer can be reasonably sure that employees are not going to have rights simply because nose rings are not permitted in the office."

This has led to a recent rise in unfair dismissal claims containing a "human rights element", Seward says. "However, our case law is not yet at the stage where dismissal on the basis of refusing to remove a nose ring or shaving would be regarded as unfair, although you could have a crack at it."

Although most UK employers would not object to a headscarf or religious dress, "unfair dismissal would be hard to argue."

In the context of the school system, "it might be more reasonable for an employer to argue that it was reasonable to exclude religious dress from a school, than say in a factory, but I don’t think it would be absolutely determining," she says. (16/07/01)

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