Prohibiting an employee from wearing any visible form of expression of political, philosophical or religious beliefs at the workplace may be justified by the employer’s need to present a neutral image towards customers or to prevent social disputes, the Court of Justice of the European Union (CJEU) has recently affirmed. However, such justification must correspond to a genuine need on the part of the employer to pursue such a policy.
EU law makes provision for the principle of equal treatment at the workplace regardless of a person’s religion or belief, disability, age or sexual orientation and prohibits any form of discrimination on these grounds, be it direct or indirect. Harassment, which creates a hostile environment, is also deemed to be discrimination.
All employees, whether working in the public or private sector, stand to benefit from such a prohibition. The principle of non-discrimination extends to conditions for access to employment, working conditions and membership of an organisation of employers or workers.
The facts of this case were briefly as follows. Two individuals, employed with two different German companies wore an Islamic headscarf at their respective workplaces. Both employers requested the employees to remove the headscarf, claiming that such a practice was not in accordance with the policy of political, philosophical and religious neutrality pursued by the companies.
Following the employees’ refusal to abide by the companies’ request, one of the employees was temporarily suspended from her duties and given a warning, while the other was first transferred to another post in which she could wear the headscarf and then sent home, and instructed to attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs.
Both employees filed an action before the German courts, one seeking an order for the company to remove from her personal file the warnings concerning the wearing of the headscarf, while the other seeking a declaration that the company’s instruction was invalid and compensation for the damage suffered.
The national court seized of the case filed a preliminary reference before the CJEU, requesting guidance as to whether an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, constitutes, with regard to workers who observe certain clothing rules based on religious precepts, direct or indirect discrimination on the grounds of religion or belief.
Guidance was also sought from the CJEU as to the circumstances when a difference of treatment indirectly based on religion or belief resulting from such a company policy may be justified and the elements to be taken into consideration in examining the appropriateness of such a difference in treatment.
The CJEU observed that the wearing of signs or clothing to manifest religion or belief is covered by the ‘freedom of thought, conscience and religion’, as enshrined in the Charter of Fundamental Rights of the EU. Quoting previous jurisprudence on the matter, the court maintained that a company policy such as the one under examination does not constitute direct discrimination. This is so, provided that the policy applies to any manifestation of beliefs without distinction and treats all the employees in the same way by requiring them, in a general and undifferentiated way, to dress neutrally and not wear any religious signs.
In the case at hand, the policy at issue was applied in a general and undifferentiated way, since the employer required even an employee wearing a religious cross to remove such a sign
The court observed that such a decision applies even though some employees observe religious precepts by wearing certain clothing. Although admittedly the company policy may cause inconvenience to these employees, this does not mean that the company’s policy of neutrality is differentiating between employees.
The CJEU affirmed that in the case at hand, the policy at issue was applied in a general and undifferentiated way, since the employer required even an employee wearing a religious cross to remove such a sign. Hence, the company policy of neutrality did not constitute direct discrimination on the grounds of religion or belief.
The CJEU then went on to examine whether a difference of treatment indirectly based on religion or belief, arising from such a policy, may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users.
The court affirmed that an employer’s desire to adopt such a policy of neutrality in its relations with customers may be regarded as a legitimate aim. However, a mere desire on the part of the employer is not sufficient to objectively justify a difference in treatment but there must be a genuine need on its part.
The CJEU alluded to various criteria which must be considered to ascertain whether such a need truly subsists, such as the rights and legitimate wishes of customers or users, and insofar as the education sector is concerned, parents’ wishes to have their children supervised by persons who do not manifest their religion or belief.
The court also dwelled on the fact that the employer adduced evidence that, in the absence of such a policy of neutrality, its freedom to conduct business would be undermined and it would suffer adverse consequences. It emphasised that the difference in treatment must also be appropriate for the purpose of ensuring that such a policy of neutrality is properly applied. This means that the policy must be pursued in a consistent and systematic manner and, furthermore, must be limited to what is strictly necessary.
The court also considered whether a company policy such as the one under examination can be justified only if the prohibition covers all visible forms of expression of political, philosophical or religious beliefs or whether a prohibition limited to conspicuous, large-sized signs is permissible, provided that is implemented consistently and systematically.
It observed that the latter prohibition is liable to have a greater effect on people with religious, philosophical or non-denominational beliefs which require the wearing of a large-sized sign, such as a head covering. In practice, this means that some workers will be treated less favourably than others because of their religion or belief. This would amount to direct discrimination, which cannot be justified.
Furthermore, a policy of neutrality within an undertaking may constitute a legitimate objective and meet a genuine need on its part to present a neutral image to its customers, only if no visible manifestation of political, philosophical or religious beliefs is allowed when workers are in contact with customers or with other workers. This is so because the wearing of any sign, even a small-sized one, would undermine the aim which the company policy is allegedly seeking to attain.
Finally, the CJEU observed that it is up to the national courts to take account of the various rights and freedoms in question and the interests involved in the case and to ensure that the restrictions on the freedoms concerned are limited to what is strictly necessary. The principle of proportionality must be always observed to ensure the reconciliation of the various rights and principles at issue and to strike a fair balance between them.
EU law clearly prohibits any form of direct or indirect discrimination at the workplace when such discrimination is based on any of the grounds identified in the law. Any company policy will, therefore, be carefully analysed by the courts to ensure that it is not a veiled attempt to circumvent the law and that it is justifiable in view of all the circumstances of the case at hand.
Mariosa Vella Cardona, freelance legal consultant