Following the STIB judgement of 3 May 2021 by the Labour Court of Brussels, ordering the STIB to end its policy of neutrality due to discrimination on the grounds of religious belief and gender, the Court of Justice of the European Union has also issued a decision on the matter.

A German association operating a large number of child day care centers prohibits its employees from wearing any visible sign of a political, philosophical or religious nature at the workplace when they are in contact with the children or their parents.

A company operating a chain of drugstores in Germany forbids its employees from wearing conspicuous, large-sized political, philosophical or religious signs in the workplace.

Two female employees, one employed by the above-mentioned association as a special needs carer and the other employed by the above-mentioned company as a sales assistant and cashier, were, on the basis of the above-mentioned prohibitions, forbidden to wear the Islamic headscarf at work.

They decided to bring both cases before the Court of Justice of the EU.

Ruling of the EU Court of Justice

The EU Court of Justice has ruled that such a policy of neutrality does not constitute direct or indirect discrimination if:

  • The policy is applied in a general and undifferentiated way.
  • This difference in treatment may be justified by the employer's desire to pursue a policy of political, philosophical and religious neutrality with regards to its customers or users, provided that
    • firstly, that this policy meets a genuine need on the part of the employer, which it is for the employer to demonstrate, taking into consideration, the legitimate expectations of those customers or users and the adverse consequences which the employer would suffer in the absence of such policy, given the nature of its activities and the context in which they are carried out;
    • secondly, that the difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which entails that that policy is pursued in a consistent and systematic manner; and,
    • thirdly, that the prohibition in question is limited to what is strictly necessary having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting such prohibition.
  • Such a prohibition covers any visible sign of expression of political, philosophical or religious beliefs

Finally, national provisions protecting freedom of religion may be taken into account as more favourable provisions when examining what constitutes a difference of treatment indirectly based on religion or belief.