Clarifications from the CJEU on the wearing of religious symbols in the workplace

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Newsflash
Datum:
29 Jul 2021

Newsflash

Von:
Dorothée David

In a judgement issued on 15 July 2021[1], the Court of Justice of the European Union (CJEU) ruled, in particular, that the rule prohibiting the wearing of any visible form of expression of political, philosophical or religious beliefs in the workplace may be justified, under certain conditions, by the employer’s need to present itself in a neutral manner to customers or to prevent social conflicts.

The case concerned two female employees of German companies, one a special needs carer in a childcare facility and the other a sales assistant in a shop, who decided to wear an Islamic headscarf at their respective workplaces.

The employer of the special needs carer asked her to remove her headscarf on the grounds that it did not fit in with the policy of political, philosophical and religious neutrality pursued by the company with regard to parents, children and third parties. The employee refused and was temporarily suspended from her duties twice and given a warning.

When the sales assistant refused to remove her Islamic headscarf in the workplace, her employer first assigned her to another post where she could wear the headscarf. Then, when she refused again, she was sent home and told to come to work without any conspicuous, large-sized signs of any religious, political or philosophical belief.

As each of the employees brought an action before the German courts against the decisions made by the employer, the national courts asked the CJEU to interpret the Directive[2] on equal treatment, asking the following question in particular:  does a company’s internal rule, prohibiting workers from wearing any visible sign of political, philosophical or religious belief in the workplace, constitute direct or indirect discrimination on the grounds of religion or belief?

The judgement of 15 July 2021 provides the following response:

  • Such a rule does not constitute direct discrimination if it is applied in a general and undifferentiated way

The CJEU confirms its case law[3] according to which such an internal rule does not constitute direct discrimination if it covers any manifestation of such beliefs without distinction and treats all the employees of the undertaking in the same way, by requiring them, in a general and undifferentiated way, to dress neutrally, which precludes the wearing of such signs.

However, the Court clarifies that a ban that does not cover all visible expressions of belief, but is limited to the wearing of conspicuous and large-sized signs, is likely to treat workers of certain faiths less favourably than others, and amounts to direct discrimination which cannot be justified.

  • A difference in treatment indirectly based on religion or belief arising from such a rule may be justified under certain conditions

For the CJEU, a difference in treatment indirectly based on religion or belief, arising from such an internal rule, is likely to be justified by the employer’s wish to pursue a policy of political, philosophical and religious neutrality, provided that the following conditions are met:

  • the policy of neutrality must meet a genuine need on the part of the employer, which it must prove by taking into consideration, inter alia:
  • the legitimate wishes of customers or users, and
  • the adverse consequences that it would suffer in the absence of such a policy of neutrality, given the nature of its activities or the context in which they are carried out.

To this end, the Court specifies that both the prevention of social conflicts and the projection of an image of neutrality towards customers may correspond to a genuine need of the employer, which it must demonstrate;

  • the policy of neutrality must be pursued in a consistent and systematic manner;
  • the prohibition on wearing any visible sign must be 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.
  • National provisions protecting the freedom of religion may be taken into account by national judges who enjoy a margin of discretion

Lastly, the CJEU clarifies that within the context of reconciling the rights and interests involved, national courts may take into account the specific context of their Member State, including more favourable national provisions regarding the protection of religious freedom.

 

 

[1] CJEU judgement of 15 July 2021, cases C-804/18 and C-341/19.

[2] Council Directive 2000/78/EC of 27 November 2000 creating a general framework for equal treatment in employment and occupation.

[3] CJEU judgement of 14 March 2017, case C-157/15, G4S Secure Solutions.