The Belgian Supreme Court (“Hof van Cassatie”, “Cour de Cassation”) assessed this question in its recent judgment of 9 March 2015 (Cass. 9 March 2015, S.12.0062.N/1, http://www.cass.be).
The case brought before the court concerned an employee of the Islamic faith working for a security company, who, after three years of service, informed her employer of her intent to wear an Islamic headscarf at work.
However, in light of a policy of neutrality, the employer had imposed a prohibition on wearing any external signs of political, philosophical or religious beliefs. Despite several warnings from her employer that wearing an Islamic headscarf at work would not be tolerated, the employee reaffirmed her intent to wear an Islamic headscarf at work. Later on, she refused to perform any work without wearing an Islamic headscarf.
Subsequently, the employee was dismissed on grounds of violating this policy.
The employee contested her dismissal before the Labour Tribunal of Antwerp and in appeal before the Labour Court of Antwerp on grounds of infringement of discrimination laws and on grounds of abuse of the employer’s right to dismissal.
The discrimination claims were rejected by the Labour Court of Antwerp on grounds that the prohibition in question concerned visible signs of religion or ideology, hence treating all employees equally.
Further, the Labour Court of Antwerp doubted whether said prohibition created a situation of indirect discrimination on grounds of a “seemingly neutral criterion”, as the difference in treatment was based on an objective and reasonable justification, i.e. the obligation of neutrality at work enforced by the employer.
The Labour Court also considered that there was no abuse of the employer’s right to dismissal, as the employee was not dismissed due to her religious beliefs, but due to her refusal to comply with the prohibition on wearing external signs of religion at work.
The employee filed an appeal to the Supreme Court against the aforementioned judgment of the Labour Court of Antwerp.
The Supreme Court determined that the aforementioned judgment was not in line with the Belgian and European anti-discrimination regulations, as it did not consider that under the Belgian and European anti-discrimination laws, religion is a “protected and not a neutral distinction criterion, hence any difference in treatment on grounds of religion is to be considered as a direct discrimination”. The court also stressed that the fact that a prohibition targets all faiths, and not just a specific one, does not turn religion into a neutral distinction criterion, on which grounds a difference in treatment would be justified.
Further, the Supreme Court stated that the legal definition of discrimination was disregarded by the Labour Court of Antwerp, as the latter’s judgment failed to determine whether the prohibition on wearing external signs of religion at work would create a situation of unequal treatment between those employees wearing an Islamic headscarf and those not wearing any.
However, the Supreme Court omitted to decide whether this difference in treatment is to be considered an unlawful form of direct discrimination on grounds of religion. Instead, it decided to pass the parcel on to the European Court of Justice by requesting a preliminary ruling from the latter on the case in question.
Consequently, it will ultimately be up to the European Court of Justice to decide whether or not a prohibition on wearing external signs of religion at work is a prohibited form of discrimination on grounds of religion or ideology, or if the difference in treatment between employees can be objectively and reasonably justified in light of a legitimate purpose.
In reply to the aforementioned question, and in anticipation of the decision of the European Court of Justice, an assessment on a case-by-case basis will be required to determine whether a difference in treatment, created by such a prohibition on wearing external signs of religion at work, can be reasonably and objectively justified in light of a legitimate purpose.
This will never be a simple task, however, as Belgian courts have adopted a very critical approach to differences in treatment based on grounds of religious belief.