Discrimination on the grounds of religion at the workplace – wearing of a “niqab”

The Austrian Supreme Court has ruled that an employer did not unlawfully discriminate against an employee by dismissing her for refusing to comply with a direction not to wear a niqab at work.

The employer in the case in question ran a notary office. The case came about after one of its employees, a Muslim woman, said she intended to wear a niqab at work in future, which would have (partly) covered her face. The employer had previously permitted the employee to wear an Islamic headscarf at work but was not prepared to allow the employee to wear the niqab, saying that wearing an item of clothing that covers the face was incompatible with working in a notary office. The employee proposed that she could remove the niqab when communicating with clients but the employer was of the view that even this compromise would impair the employee’s work. Consequently, the employer terminated the employment relationship and the employee claimed compensation inter alia on the basis of direct discrimination on the grounds of religion.

The Supreme Court referred to case-law from the European Court of Human Rights and found that it is an uncontested principle of interpersonal communication that the face be unveiled. Furthermore, the Court observed that unimpaired communication with other people, whether clients or work colleagues, was necessary for the employee to be able to do her job properly, given the nature of her role.

Taking these considerations into account, the Austrian Supreme Court ruled that the employee’s dismissal, which was based on the her refusal to comply with the employer’s direction not to wear a niqab during work, did not qualify as direct discrimination on the grounds of religion under the Equal Treatment Act. Note, however, that this ruling takes the special status of a notary office into account; hence, it does not follow that the result would necessarily be the same if a similar situation arose in a different industry.