Court of Justice of the European Union: EU companies can prohibit to wear a religious headscarf at work

Court of Justice of the European Union: EU companies can prohibit to wear a religious headscarf at work

The Court of Justice of The European Union (‘The European Court’) ruled on the 15th of July 2021 that a prohibition on wearing any visible form of expression of political, philosophical or religious beliefs in the workplace can be justified. This may be justified in order to present a neutral image towards customers or to prevent social disputes.

The cases were brought to the Labour Court of Hamburg and the Federal Labour Court of Germany by two Muslim women in Germany who were both suspended from their jobs for wearing a religious headscarf. Both women were told that wearing a headscarf at their workplace was not allowed and, as a result of still wearing the headscarf, were dismissed.

The European Court had to decide whether religious headscarf bans at work represented a violation of the freedom of religion or were allowed as part of the freedom to conduct a business and the wish to project an image of neutrality to customers.

Ruling
The European Court ruled that certain prohibitions in relation to the wearing of religious symbols may be justified under specific circumstances:

“Indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting, at the workplace, the wearing of visible signs of political, philosophical or religious beliefs with the aim of ensuring a policy of neutrality within that undertaking can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs.”

The European Court makes clear that the ban does not constitute discrimination if it is systematically applied to all beliefs. The policy has to be 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:

1. It corresponds to a genuine need on the part of the employer

2. and that court in individual member states may take into account “the specific context” in their country

3. and, in particular, that the court may take into account the more favourable national provisions on the protection of freedom of religion.

Such a prohibition has to cover any visible sign of expression of political, philosophical or religious beliefs. The size does not matter. A “prohibition which is limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs” would be a form of direct discrimination on grounds of religion or belief and could not be justified.

What does this mean specifically for Dutch employers?
Employers in the Netherlands can ask their employees not to wear visible signs of political, philosophical and religious convictions at their workplace, especially when those employees are in a lot of contact with clients.

Employers will have to keep those requirements in mind and will have to make sure that those requirements will be in the policy of neutrality clearly laid down and explained. Besides that, the employer has to consider if the employee, who wears a visible sign, can work at a different place within the organisation, where he for instance is less in contact with clients or other employees.

Source: the Court of Justice of the European Union (CJEU) – Judgment in Joined Cases C-804/18 and C-341/19 WABE and MH Müller Handel
Date: July 15 2021 (Luxembourg).

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