The European Court of Justice recently ruled on discrimination based on religion and partners in our Belgian and Danish firms published an article about this in the September 2017 issue of IBA Discrimination and Equality News. We have reproduced the article here.
Authors: Yvonne Frederiksen & Inger Verhelst
The prohibition against religious discrimination in the EU was enacted as part of Council Directive 2000/78/EC of 27 November 2000, establishing a general framework for equal treatment in employment and occupation.
The Directive prohibits, among others, direct discrimination on the grounds of religion or belief unless the difference of treatment is justified by the fact that a specific characteristic related to religion or belief constitutes a genuine and determining occupational requirement. However, according to recital 23 of the Directive, only in very limited circumstances may a characteristic related to religion or belief constitute a genuine and determining occupational requirement.
The Directive further prohibits indirect discrimination where an apparently neutral provision, criterion or practice would put persons with a particular religion or belief at a particular disadvantage compared with other employees, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
The Directive does not explicitly require an employer to accommodate an employee’s wish to express and/or practice their religion in the workplace and it has therefore been debated for several years to what extent an employer could legally implement and enforce a workplace policy prohibiting any kind of manifestation or practice of religion in the workplace, including the wearing of religious clothing or symbols. This debate intensified after the ruling of the European Court of Human Rights in the Eweida case of 15 January 2013, where the European Court of Human Rights held that it constituted a violation of Article 9 of the European Convention on Human Rights to prohibit a female employee (Ms Eweida), who worked as a member of the check-in staff for British Airways, from wearing a cross visible on a chain around her neck.3
On 14 March 2017, the European Court of Justice delivered for the first time two decisions on the EU prohibition against discrimination based on religion or belief, specifically regarding two female employees’ right to wear an Islamic headscarf in the workplace – these decisions had been keenly awaited because of the uncertainty with regard to the interpretation of Directive 2000/78/EC.
The Achbita case (C-157/15)
In the Achbita case, the facts were the following: a Muslim woman was working as a receptionist for a company in Belgium that offered reception services to clients in the private and public sectors. The company’s work rules contained a neutrality policy that read: ‘It is prohibited for employees to wear visible signs of their political, philosophical or religious convictions in the workplace or to manifest any ritual following from that conviction.’ After having complied with the policy for three years, the employee one day announced that she wished to wear a headscarf at work in future. The employer refused to accept this, referring to the policy. After fruitless discussions, the employee was dismissed.
The Antwerp Labour Tribunal in first instance and the Antwerp Labour Court in appeal both judged that the dismissal did not constitute direct or indirect discrimination as the employee was not dismissed because of her Muslim faith but because of her continued and formal refusal to comply with the employer’s neutrality policy. The policy in itself did not lead to direct discrimination as it makes no distinction among employees based on their religion. As to the question of indirect discrimination, the Antwerp courts judged, with a reference to the European Court of Human Rights case law,4 that:
‘Striving for a peaceful employment environment, where (gender) equality and pluralism are being protected and where religious fundamentalism and social pressure are banned, evidently constitutes a legitimate aim, also for an employer in the private sector.’
The Antwerp court found that there are two approaches in Western society striving for the same perfectly legitimate aim to create a respectful and harmonious employment environment where people of different origins, cultures and beliefs can work together in a peaceful way and be in contact with customers and third parties: under the first approach, this aim is best realised by a diversity policy whereby each employee is given maximal possibilities to express their own personality, including their individual religious or philosophical conviction (this policy is typically adopted in Anglo-Saxon countries); under the second approach, this aim is better realised by a neutrality policy whereby each employee is asked to present a neutral appearance in the workplace (this policy is often adopted in countries such as France and Belgium).
Since at present there is no agreed view on which of these two approaches should be preferred, the Antwerp Labour Court was of the opinion that an employer cannot be reproached if it wants to adopt a neutrality policy.5
The applicants, Ms Achbita and the Belgian Centre for Equal Opportunities (now called Unia) filed a petition before the Supreme Court, which submitted a preliminary question before the European Court of Justice. It asked whether the prohibition for a Muslim employee to wear a headscarf at work constitutes direct discrimination when this prohibition follows a neutrality rule prohibiting all employees from wearing any visible sign of their philosophical, religious or political conviction.6
The Bougnaoui case (C-188/15)
The Bougnaoui case in France was heard before the European Court of Justice at the same time as the Achbita case. Ms Bougnaoui was a project engineer working in an ICT company. When she was hired she was told that when she would be working at customers’ sites and she could not wear a headscarf as the company chose to have a neutral image. After a few months, a customer complained that Ms Bougnaoui was wearing a headscarf when working with them and the employer asked Ms Bougnaoui to remove it in future. As she refused to do so, she was dismissed. The case was brought before the French Supreme Court.
Apparently, the French Supreme Court assumed that the refusal to allow Ms Bougnaoui to wear a headscarf at work could lead to direct discrimination and it asked the European Court of Justice – as a preliminary question – whether the wish of a client of a company not to have its services delivered by an employee wearing an Islamic headscarf could be considered as a valid exemption.
The ruling of the European Court of Justice
Both cases led to opposing opinions written by different advocates-general, evidencing how in Europe there are varying views on the matter.7 8
The European Court of Justice handed down a judgment in both cases on 14 March 2017.9
In the Achbita case, the Court starts by defining the concept of religion. Does religion refer only to the internal faith, such as was adopted by the Belgian courts, or does it include the external expression? Based on the definition of religion in the European Convention on Human Rights and the EU Charter of Fundamental Rights, the court confirms that religion must be interpreted broadly including the forum internum, that is, the fact of having a belief, and the forum externum, that is, the manifestation of religious faith in public.
The European Court of Justice states that an internal policy prohibiting employees in a general and undifferentiated manner from wearing visible signs of political, philosophical or religious convictions treats all the company’s employees in the same way. As a consequence, such a policy does not constitute direct discrimination based on religion.
The European Court of Justice also examined whether the neutrality policy could lead to indirect discrimination. The Court did not exclude the possibility that the referring court could find that a neutrality policy created a difference in treatment between persons that would be indirectly based on religion, as it is possible that Muslim employees would be put at a particular disadvantage.
However, the court advised the referring court that:
- the desire for a company to display, in relations with both public and private sector customers, a policy of political, philosophical or religious neutrality must be considered legitimate, in particular 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. That wish is related to the freedom to conduct business, as recognised by Article 16 of the EU Charter;
- the prohibition on wearing a headscarf is appropriate for the purpose of ensuring that a policy of neutrality is properly applied, provided that that policy is pursued in a consistent and systematic manner; and
- the measure is necessary on condition that it concerns only workers who interact with customers. Therefore, the European Court of Justice suggests that the referring court should ascertain whether, taking into account the inherent constraints to which the undertaking is subject, and without the employer being required to take on an additional burden, it would have been possible to offer a post not involving any visual contact with those customers.
The European Court of Justice did not explicitly rule on a neutrality policy covering all employees, and based on the conviction that a harmonious employment environment is achieved when all employees have a neutral appearance and not only those who are in contact with customers, such as the one adopted in the Achbita case.
In the Bougnaoui case, the European Court of Justice confirmed the principles as laid down in the Achbita case. If Ms Bougnaoui’s dismissal was based on an internal rule prohibiting in a coherent and systematic way all signs of political, philosophical or religious convictions (which was not clear from the facts presented to the ECJ), the dismissal cannot be considered to be direct discrimination. If it would appear that such a rule would lead to a particular disadvantage for persons belonging to a well-defined religion or conviction, there is indirect discrimination that can possibly be justified.
If Ms Bougnaoui’s dismissal was not based on such an internal policy, there would be direct discrimination. According to the European Court of Justice, such direct discrimination could not be justified by the wish of a customer not to have certain services delivered by a person wearing an Islamic headscarf. Such a wish could not constitute an essential and determining professional requirement as this concept requires an objective element.
A similar case from the Danish Supreme Court
As early as 2005, the Danish Supreme Court decided a case regarding a workplace policy in a chain of supermarkets requiring employees with customer contact to wear the workplace uniform only and banning headwear (including religious headwear) unless the headwear was part of the uniform (which was the case in the fresh-food departments).10
The employer explained that the reason for the dress code and its strict enforcement was a wish for a neutral appearance in relation to any kind of personal belief (including religious, philosophical and political beliefs) of employees with customer contact.
A sales assistant in the supermarket who had worked as a cashier for two years was summarily dismissed when she persistently maintained that she wanted to wear the Islamic headscarf at work. At this point, she was offered a transfer to the store department, where the dress code did not apply. However, the employee rejected this offer and was subsequently dismissed.
The Supreme Court ruled that the employer’s enforcement of the workplace dress code, which was applied in a systematic and consistent way without regard to the religion of the employee in question, did not constitute direct discrimination. Furthermore, the workplace dress code was objectively and reasonably justified as a legitimate aim (i.e. having a neutral appearance towards customers) and the means of achieving the legitimate aim were appropriate and necessary. Accordingly, the Danish Supreme Court ruled that there was no violation of either Danish law or EU law and explicitly stated that the enforcement of the workplace dress code did not constitute a violation of Article 9 of the European Convention on Human Rights.
The European Court of Justice has now further clarified EU law and has even taken it a step further by establishing that the specific mentioning of religious symbols or clothing in a workplace policy does not put the employer at risk of violating the ban on religious discrimination so long as the workplace policy imposes a general requirement for neutrality (not only applying to religious beliefs but also political and philosophical beliefs) and provided that the workplace policy is genuinely pursued in a consistent and systematic way.11
It may be questioned how the recent decisions by the European Court of Justice correspond with the decision by the European Court of Human Rights in the Eweida case.
However, first of all, it is important to note that the European Court of Human Rights in the Eweida case stated that the employer’s wish to project a certain corporate image did constitute a legitimate aim under the European Convention on Human Rights.
Second, the European Court of Human Rights referred to the fact that the employer had previously authorised the wearing of other items of religious clothing, such as turbans and hijabs, and that Ms Eweida’s cross was a discreet symbol of her religious conviction. Accordingly, there was no evidence that the cross would have a negative impact on the employer’s brand or image.
Finally, the European Court of Human Rights mentioned that the employer had subsequently changed the workplace dress code, allowing the visible wearing of religious symbolic jewellery, and the European Court of Justice specifically noted that this fact demonstrated that the previous prohibition was not ‘of crucial importance’.
In the opinion of the authors, the two decisions by the European Court of Justice are not at odds with case law by the European Court of Human Rights as the European Court of Justice explicitly states that a workplace policy of neutrality must be generally pursued in a consistent and systematic manner and that the prohibition against religious symbols or clothing must be limited to what is strictly necessary. This was clearly not the situation in the Eweida case.
It is yet to be clarified to what extent a general neutrality policy for all employees, regardless of whether or not they have customer contact, can be considered objectively justified by a legitimate aim.
However, after the two European Court of Justice decisions there appears to be no doubt that it is a precondition for an employer to legally reject signs and symbols of the employee’s religious conviction that the employer implements a neutrality policy in the workplace. For such a neutrality policy to withstand any legal test under EU law, it is necessary that:
• it applies to all employees notwithstanding their political, philosophical or religious convictions,
• it is pursued in a consistent and systematic way by the employer; and
• the employer ensures that the neutrality policy is limited to what is strictly necessary in order to achieve the legitimate aim.