European Court of Justice takes position justifying prohibitions on showing visible signs
10/09/2021

On 15 July 2021 the European Court of Justice ruled that employers may legally prohibit employees from wearing any visible signs of political, philosophical or religious beliefs at work if they can prove that they need to appear neutral in front of their clients or need to avoid social conflicts. However, this exception must meet a genuine need demonstrated by the employer and national courts may take national provisions which tend to favour protecting religious freedom in account.

Facts of the case at hand

In its judgment, the European Court of Justice (the EJC) referred to two separate cases. 

The first case (C-804/18) concerns IX, an orthopedagogue who has been employed by a child day care centre in Germany since 2014. At the beginning of 2016, she decided to start wearing an Islamic headscarf. Shortly before returning from parental leave in 2018, she discovered that her employer had adopted a policy called ‘Instructions on observing the requirement of neutrality’. The company stated that, as part of the corporate policy, there was a strict requirement for employees to appear ‘neutral’ in front of parents, children and third parties in order to guarantee the children’s individual and free development with regard to religion, belief and politics,… When IX refused to remove her headscarf, she was temporarily suspended from work on two occasions and also received an official warning. 

The second case (C-341/19) concerns MJ, who had been employed by a store as a sales assistant and cashier since 2002. On return from parental leave in 2014, unlike before, she wore an Islamic headscarf. Her employer asked her to remove the headscarf in the workplace. As she did not comply, she was transferred to another post where she was allowed to continue wearing the headscarf. In June 2016, her employer once again asked her to remove her headscarf. And again, MJ refused to comply and was sent home. The instruction she received from her employer was that she must attend the workplace without displaying any conspicuous, large-sized signs of any political, philosophical or religious beliefs.

In both cases the employees brought an action before the national courts. The national courts decided to ask the ECJ a preliminary question, more specifically whether or not an internal company policy which prohibits employees from wearing any visible signs of political, ideological or religious beliefs constitutes direct or indirect discrimination on the grounds of religion.

The ECJ’s findings

In its judgment, the ECJ refers to previous case law in which it ruled that internal company policies which prohibit workers from wearing any visible signs of political, philosophical or religious beliefs in the workplace do not constitute direct discrimination, if they are applied without distinction to all expressions of belief and treat all employees in the same way i.e. requiring them to comply in a general and non-differentiated manner. According to the ECJ, this finding is not called into question by the fact that certain employees follow religious injunctions that require them to wear certain clothes. Although these policies can have a particularly unpleasant impact on such employees, this does not imply that they are discriminatory. However, prohibitive policies which are limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs (as was the case in C-341/19) are liable to constitute direct discrimination on the grounds of religion or belief.

Furthermore, the Court confirmed that internal policies which result in indirect differences in treatment based on religion or belief may be justified where employers can demonstrate that they wish to pursue a policy of political, philosophical and religious neutrality towards their customers or users in order to meet their legitimate expectations. However, an employer’s desire to pursue a policy of neutrality alone – while in itself a legitimate aim – is not sufficient to justify such a policy. These indirect differences in treatment must be objectively justified. An exception for indirect difference in treatment will only be allowed if the following three conditions are met:

1. There is a genuine need to deploy such a policy. For example, employers must demonstrate that (i) their customers or users have rights and legitimate expectations and/or there have been (ii) express requests from parents (in the context of education) to surround their children with people who do not express their religion or beliefs in front of their children.

In this respect the ECJ found that employers must provide evidence that, in the absence of a policy of political, philosophical and religious neutrality, their freedom to conduct a business would be adversely affected, given the nature or context of their activities. 

In addition, the ECJ not only found that employers may have a genuine need to display a neutral attitude towards customers, but also that employers may wish to employ such a policy to help avoid social conflicts within the company. 

2. The difference in treatment is appropriate to the employer’s policy of neutrality. This means that the policy must be pursued in a consistent and systematic manner.

3. The prohibition on wearing any visible signs of political, philosophical or religious beliefs imposed by the internal policy is limited to what is strictly necessary in light of the true magnitude and severity of the adverse effects that the employer is trying to avoid.

Conclusion

Based on the judgment of the European Court of Justice of 15 July 2021 employers may implement a neutral dress code if the policy (i) meets a demonstrable genuine need and (ii) is appropriate and proportionate with its aim. In addition, employers must make sure that the dress code applies without distinction to all expressions of political, ideological or religious beliefs.

Zie ook : PwC Legal ( Mr. Bart Elias ,  Mrs. Pascale Moreau )

[+ http://www.pwclegal.be]

Mr. Bart Elias Mr. Bart Elias
Partner
[email protected]
Mrs. Pascale Moreau Mrs. Pascale Moreau
Partner
[email protected]

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