EU Court of Justice says headscarf ban is not discriminatory

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.

Related : Loyens & Loeff CVBA ( Mr. Kris De Schutter ,  Mrs. Lucia Bellobuono )


Mr. Kris De Schutter Mr. Kris De Schutter
[email protected]
Mrs. Lucia Bellobuono Mrs. Lucia Bellobuono
Attorney at law
[email protected]

Click here to see the ad(s)
All articles Labour law

Lastest articles Labour law

European Court of Justice takes position justifying prohibitions on showing visible signs

On 15 July 2021 the European Court of Justice ruled that employers may legally prohibit employees from wearing any visible...

Read more

Back to (remote) work: new rules for Belgian employers as from September 2021

After 1.5 year of teleworking, the Belgian Coordination Committee (coordination body composed of Federal, regional and com...

Back to (remote) work: new rules for Belgian employers as from September 2021 Read more

Directors of regulated firms can no longer be bound by an employment contract

Until recently, directors of regulated firms were permitted to serve as directors on a self-employed basis and, at the sam...

Directors of regulated firms can no longer be bound by an employment contract Read more

Returning to the workplace – Part 5: working time for teleworkers

In this fifth and final episode of our Working from Home series, we will dive into the less explored topic of working...

Read more

Lastest articles by Mr. Kris De Schutter

New registration tool for employers whose employees cannot work from home

On 24 March 2021, the Belgian government introduced a registration tool for employers to indicate how many employees will ...

Read more

New collective agreement on telehomework during COVID-19 crisis published

On the 26th of January 2021 the National Labour Council (NAR) concluded a national interprofessional collective agreement ...

Read more

2020 social elections: latest updates

The 2020 social elections are around the corner. Postponing was not an option but in view of the difficult Covid-19 contex...

Read more

Do’s & Don’ts in case of dismissal and downsizing

The coronavirus has a major impact on our economy and possibly also on your company. In the context of this pandemic, seve...

Read more

Lastest articles by Mrs. Lucia Bellobuono

Social elections 2020: watch out for the start of the occult period

With the holiday’s over, it's time to be aware of the next important date in the pre-election process, namely da...

Read more

LexGO Network