Wearing a headscarf in the workplace: what does the CJEU say?

Author: Catherine Legardien
Date:

On 14 March, the Court of Justice of the European Union (CJEU) rendered a judgment following a preliminary question of the Belgian Court of Cassation regarding the wearing of an Islamic headscarf in the workplace.

For a full explanation about the enforcement of the 'anti-discrimination legislation’ in the employment relationship, we refer to the Memento of the Employer of May 2015.

Context

The case

A receptionist, a female Muslim, started to work for an employer providing reception services for customers in both the public and private sectors. There was a silent (unwritten) rule within the company that workers could not wear visible signs of their political, philosophical or religious beliefs in the workplace.

Three years after her recruitment, the employee informs the management that she intends to wear a headscarf during working hours. The management answers that this practice is contrary to the company’s policy of neutrality. Shortly afterwards the silent rule (that workers cannot wear visible signs of their political, philosophical or religious beliefs in the workplace) is inserted in the workplace regulations.

The receptionist refuses to respect the prohibition. Thereupon her employer decides to dismiss her.

The employee believes that she is the victim of discrimination on the grounds of her religion and lodges an appeal to the Labour Court.

Judgment of the Higher Labour Court of Antwerp

Following the appeal of the employee, the Higher Labour Court of Antwerp decided in a judgment of 23 December 2011 that the ban stated in the workplace regulations on wearing visible signs of political, philosophical or religious beliefs in the workplace did not constitute direct discrimination.

The reasons therefore are the following: this provision in the workplace regulations does not make any distinction between the (groups of) employees, does not use a distinguishing criterion to treat specific (groups of) employees less favourable than others, relates to all visible expressions of any belief whatsoever and, consequently, is meant for all employees of the company.

The Higher Labour Court even rejected the existence of indirect discrimination. Even though it was evidenced that there was an indirect distinction, there existed a possible objective, reasonable justification for the company’s prohibition.

Preliminary question of the CJEU

The Court of Cassation, to which the case was brought to following the judgment of the Higher Labour Court of Antwerp, decided in a judgment of 9 March 2015 to refer the following question to the CJEU for a preliminary ruling: Should the anti-discrimination rules be interpreted as meaning that the prohibition on wearing, as a female Muslim, a headscarf at the workplace does not constitute direct discrimination where the employer’s rule prohibits all employees from wearing outward signs of political, philosophical and religious beliefs at the workplace?’

What does the CJEU say?

The judgment of the CJEU of 14 March 2017 holds the answer to this question. The Court also offers elements that may help to answer the question whether there is indirect discrimination.

Direct discrimination?

The ban inserted in the workplace regulations and prohibiting employees from wearing visible signs of their political, philosophical or religious beliefs is no direct discrimination according to the CJEU.

This rule covers any manifestation of such beliefs without distinction. The rule must, therefore, be regarded as treating all workers of the company in the same way by requiring them, in a general and undifferentiated way, to dress neutrally, which precludes the wearing of such signs.

Indirect discrimination?

In that regard the CJEU notes that it is for the national court to determine whether the rule gives rise to a difference in treatment that is based indirectly on religion or belief. That would be the case if it is established that the apparently neutral obligation it encompasses results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage.

Such a difference of treatment does not, however, amount to indirect discrimination if it is objectively justified by a legitimate aim and if the means of achieving that aim are appropriate and necessary.

The CJEU gives some response elements which the national court may use to ascertain whether there is indirect discrimination.

Legitimate aim

The desire to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate.

An employer’s wish to project an image of neutrality towards customers relates to the freedom to conduct a businessand is, in principle, legitimate, notably where the employer involves in its pursuit of that aim only those workers who are required to come into contact with the employer’s customers.

Appropriate means

The fact that workers are prohibited from visibly wearing signs of political, philosophical or religious beliefs is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is genuinely pursued in a consistent and systematic manner.

In that respect, it must be ascertained whether the employer had, prior to the employee’s dismissal, established a general and undifferentiated policy of prohibiting the visible wearing of signs of political, philosophical or religious beliefs in respect of members of its staff who come into contact with its customers.

Necessary means

The prohibition, contained in the workplaces regulations, on the visible wearing of any sign or clothing capable of being associated with a religious faith or a political or philosophical belief must be considered strictly necessary for the purpose of achieving the aim pursued. In the present case, the prohibition shall be limited to the employees who come into contact with the customers.

Taking into account the inherent constraints to which the company is subject, and without being required to take on an additional burden, it must be ascertained whether it would have been possible for the employer to offer a post to the employee not involving any visual contact with the customers, instead of dismissing her.

What we must remember?

From this judgment of the CJEU, some elements related to the wearing of distinctive signs of political, philosophical or religious beliefs in the workplace are interesting to know.

1. It is recommended to insert the silent rule that workers cannot wear visible signs of their political, philosophical or religious beliefs in the workplace in the workplace regulations that are applicable in the company.

2. This rule does not constitute direct discrimination.

3. Neither does it constitute indirect discrimination when the purpose of this rule is to introduce a policy of neutralityin the company and it only applies to the workers who come into contact with the customers.

4. When a worker who comes into contact with customers wants to wear a visible sign of his political, philosophical or religious beliefs, the employer must offer him another working post, to the extent possible, before considering dismissal.

Source: CJEU, 14 March 2017, case C-157/15, Achbita.

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