In a recent decision, the European Court of Justice (ECJ) confirmed existing jurisprudence by ruling that a prohibition on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not constitute direct religion or belief discrimination under the EU Equal Treatment Framework Directive (‘the Directive’) – but only if the prohibition applies in a general and undifferentiated way.
This decision follows separate requests for preliminary rulings by two German labour courts, which asked the ECJ to clarify:
- whether banning employees from wearing Islamic headscarves constituted direct religion or belief discrimination under the Directive; and
- what degree of indirect discrimination could be justified.
German case #1 – justifying indirect discrimination
In the first case (C‑804/18), a Muslim employee had been wearing a headscarf at her workplace (a child day-care centre) since 2016. In 2018 the employer established a policy of political, philosophical and religious neutrality, which effectively banned employees from wearing any visible signs of religious belief to parents, children and third parties in the workplace. The employee refused to remove the headscarf. The employer suspended the employee twice and gave her two warnings. The employee filed a suit to remove the warnings from her personal file.
Under German law, an employee is generally allowed to wear religious, philosophical or political symbols at work. The employer may only restrict the right if there are objective reasons for doing so, e.g. safety requirements, and employees are treated equally. (In this case, the employer had also asked a female employee to remove a cross that she wore around her neck.)
The ECJ found that the employer’s policy did not constitute direct discrimination – as long as it didn’t distinguish between beliefs and treated all employees equally.
The court also considered whether the employer could justify the rule’s indirect discriminatory effect on the grounds that it was a response to the legitimate wishes of customers and users.
The ECJ held that the mere desire of the employer to have the policy is not enough. The employer must also show that it has a genuine need for the policy. For this to occur, it can consider the rights and legitimate wishes of customers or users, such as parents who:
- have a right to ensure their children were educated in accordance with their religious, philosophical and political beliefs; or
- wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children.
The ECJ also mentioned two conditions for objective justification, which are that the rule must be:
- appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which means that the policy must be pursued in a consistent and systematic manner; and
- limited to what is strictly necessary.
German case #2 – ‘large-sized signs’ of belief
The second case (Case C‑341/19) concerned a Muslim sales assistant and cashier in a store, who refused to comply with the employer’s request to remove her headscarf and was told to attend her workplace without ‘conspicuous, large-sized signs’ of any political, philosophical or religious beliefs. The employee believed that the employer’s instruction was invalid and sought damages, arguing that the policy of neutrality does not enjoy unconditional priority over the freedom of religion and must be subject to a proportionality test.
The ECJ considered whether a ban on visible signs of political, philosophical or religious beliefs in the workplace can be justified only if the ban covers all such visible forms of expression or whether it is sufficient that the ban is limited to conspicuous, large-sized signs.
It ruled that the latter could constitute direct discrimination on the grounds of religion or belief, given that it would have a greater effect on people with religious, philosophical or non-denominational beliefs that require the wearing of a large-sized sign, such as a head covering. The ECJ held that, in this case, indirect discrimination could be justified if the ban extended to all visible forms of expression of political, philosophical or religious beliefs.
What happens next?
The German labour courts will now have to apply the ECJ’s ruling and decide whether the respective employer has a right to ban their employees from wearing any political, philosophical and religious signs. They will have to carry out a proportionality test on each case.
It is currently unclear when a ruling from the German courts can be expected.
