On 14 March, the Court of Justice of the European Union (CJEU) rendered two long-anticipated judgments concerning the prohibition against wearing visible religious signs in the workplace and discrimination. The first judgment arises from an interlocutory question asked by the Belgian Court of Cassation and the second from an interlocutory question asked by the French Court of Cassation.
In this e-zine, we summarize these judgments and the lessons you can draw from these for the management of these sensitive subjects in your company.
Case C-157/15, G4S Secure Solutions
The Belgian case opposes G4S, a private company providing, amongst other things, reception services for customers, to one of its ex-employees.
In the present case, the employee had been hired in February 2003 as a receptionist. At the beginning, she did not wear the Islamic headscarf during her working time. In April 2006, she informed her employer of her intention to wear the headscarf at work. The management informed her that this would not be tolerated, as this was against the neutrality desired by the company in its contacts with its customers. At that time, the rule invoked by G4S was unwritten.
At the end of May 2006, the works council of G4S approved an amendment to the work rules that provided with effect as of 13 June 2006 that "employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs or engaging in any observance of such beliefs".
The employee was dismissed with a severance indemnity on 12 June 2006, because of her refusal to take off the headscarf. Before the Tribunal and then the Labour Court of Antwerp, she claimed an indemnity equal to 6 months’ pay for violation of the Anti-Discrimination Act or (on a subsidiary basis) damages for unfair dismissal.
Her claims were dismissed, and a cassation complaint was launched. The Court of Cassation then asked an interlocutory question of the CJEU in order to determine whether the ban on wearing the Islamic headscarf, which arises from a general internal rule of a private company, constitutes direct discrimination.
The CJEU notes first of all that the concept of religion must be interpreted as covering both the fact of having religious beliefs as well as the freedom to manifest them.
Thereafter, the CJEU finds that the internal rule of G4S treats all employees of the company in an identical way; such that this rule does not create a difference of treatment directly based on religion or religious beliefs.
The CJEU then considers that the said rule could, however, create a difference of treatment that is indirectly based on religion, which means a practice that is apparently neutral but that creates, in fact, a specific disadvantage for the persons who adhere to a specific religion. Such a distinction would amount to indirect discrimination if it were not justified by a legitimate aim, and if the means of achieving that aim were not appropriate and necessary.
In this respect, the CJEU lays down the following principles:
- The willingness of an employer to display a neutral image towards its private or public customers constitutes a legitimate aim.
This had already been confirmed by The European Court of human rights in its judgment Eweida v. United Kingdom of 15 January 2013.
- The prohibition against wearing visible political, philosophical or religious signs is able to ensure the correct application of a policy of neutrality. The Belgian judge will, however, have to verify whether the employer had, before the dismissal, established a general and undifferentiated policy in this regard.
- The prohibition must only concern employees who are in direct contact with customers. It is only in this case that it will be considered as strictly necessary for the pursued aim.
- Finally, it should be verified whether G4S could have offered another function which did not involve a visual contact with customers instead of dismissing the employee. The CJEU admits that, in this exercise, one should take into account the inherent constraints on the company and that it should not suffer an additional burden.
Case C-188/15, Bougnaoui and ADDH
In this case, a future employee of Micropole had met a representative of the company at a student fair. He informed her that the wearing of an Islamic headscarf might pose a problem when she came into contact with customers of the company. She then completed an internship in the framework of her studies where she was first wearing a bandana and then an Islamic headscarf. At the end of her internship, she was hired by Micropole.
Following a complaint from a customer, the employer had reaffirmed the principle of necessary neutrality towards the customers and asked the employee to take off her scarf, but she refused. She was dismissed for this reason and challenged her dismissal before the French courts.
The Court of Cassation took the matter before the CJEU and asked whether the willingness of the employer to take into account the wish of a customer to not receive services from an employee wearing a headscarf could be considered as a "genuine and determining occupational requirement". Indeed, the anti-discrimination directive provides that the Member States can allow that a difference of treatment on the grounds of a characteristic linked to religion does not constitute discrimination if this characteristic constitutes a "genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate".
The question was therefore different from the one asked by the Belgian Court of Cassation. However, the CJEU first of all recalled the same principles as those identified in the G4S judgment.
Further, the CJEU insists that it is only under very strict conditions that a characteristic linked to religion can constitute an essential and direct occupational requirement. Indeed, this concept refers to an objective requirement which is requested by nature or the conditions of exercising a professional activity. In this regard, the Court clearly answers that "the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of the directive".
What can you learn from these two judgments?
- The simple request from a customer does not allow the employer to prohibit an employee from wearing religious signs.
- However, the image of neutrality desired by an employer towards its customers could justify the prohibition on wearing religious signs.
- If the employer wants to introduce this prohibition of wearing religious signs:
- It will have to establish a general and undifferentiated policy in this regard, namely, one which applies to all visible political, philosophical or religious signs.
This policy will furthermore need to be confirmed in writing, for example in the work rules, and the employees will need to be informed of this policy.
- The prohibition may only apply to employees who are in direct contact with customers and not, for example, the employees in the back office.
- Before dismissing an employee for this reason, the employer will need to verify whether it can assign another function to the employee where there would be no visual contact with customers.