11 February 2013

Employers do not necessarily have to take employees' religious faith into consideration

Four cases have been presented to the European Court of Human Rights concerning employees' acts based on religious faith. Two employees were dismissed as they discriminated against homosexual customers and citizens, while two other employees were asked not to visibly wear cross necklaces.

The four cases

Four English citizens commenced legal proceedings before the European Court of Human Rights claiming that they had been discriminated against due to religion, and that their employers had violated article 9 of the European Convention on Human Rights concerning freedom of religion.

The airline company's dress code

The first case concerned an employee working at the check-in counter of an airline company. The company had introduced a dress code according to which all jewels etc. were to be worn under the uniform. However, the company had recognised that certain symbols, inter alia turbans and headscarves, which were impossible to wear under the uniform, could be worn visibly. The employee wore a cross necklace, which she refused to hide under the uniform stating that it was a part of her religion to wear the cross visibly. She was offered relocation to a position with no customer contact, but she refused to take on the position and was then on leave with pay for six months until the company changed its dress code with the result that also cross necklaces could be worn visibly.

The hospital's health and safety instructions

The second case concerned a nurse who was also refused to visibly wear a cross, but the hospital's reasons were based on considerations in terms of health and safety. The hospital suggested that she attach the cross to her name tag, but as she had to take the name tag off during operations, she refused. As in the first case, the nurse also claimed that it was part of her religion to visibly wear the cross.

Registrar and couple therapist rejected homosexuals

In the two last cases, a registrar and a couple therapist - both Christians - were dismissed. The registrar was dismissed as she refused to marry homosexuals due to her faith. The couple therapist refused to counsel homosexual couples on sex referring also to his Christian faith.

The decision of the European Court of Human Rights

The Court found that it was undoubtedly a part of the Christian faith to wear religious symbols. The Court also found that it was undoubtedly legitimate for an employer to wish to protect its brand and image. The Court found, however, that the English courts had attached too much importance to the legitimate purpose in relation to the company brand in the case of the airline company. The Court attached importance to the fact that it had undoubtedly been permitted to wear other religious symbols such as turban and headscarves without this having had a negative effect on the airline company's brand and image. Further, the Court found that the airline company could have changed the dress code subsequently with the result that religious symbols, including jewels, were permitted. This implied that the previous prohibition had not had any decisive effect. The Court therefore found that the employee had been discriminated against in terms of freedom of religion.

The Court found, however, that the nurse's wish to wear the religious symbol had to give way for the employer's considerations in terms of health and safety. In this case, the Court also attached importance as to how other employees had been treated and, in particular, that two Sikh nurses had also been ordered not to wear Kirpan (ceremonial sword or dagger worn by baptised Sikhs) and Kara (special religious Sikh bracelet).

In the two last cases concerning dismissal, the Court also found that the religious faith of the registrar and the couple therapist had to give way for the right not to be discriminated against due to sexual orientation. The Court found that the employer had undoubtedly pursued a legitimate purpose, and that the assessment as to the balance between the rights of the convention had been left to the national authorities and courts. The Court further dismissed that the fact that a person decides to accept employment knowing that the employment will have impact on his/her freedom to manifest his/her religious faith must also be included in the assessment as to whether the employer has violated article 9 concerning the employee's right to freedom of religion.

Our opinion

The European Court of Human Rights is in line with Danish case law, according to which it is possible for an employer to introduce certain limitations as to the employees' wearing of religious symbols. At the same time, the Court's decisions confirm that it is possible for an employer to introduce a dress code, but that the dress code must be factual and the rules must be appropriate and necessary (assessment of proportionality).

The Danish Supreme Court ruled in favour of an employer laying down in the dress code that the employees could not wear religious clothes or jewels as the employer wished that the employees appeared the same and neutral in terms of religion. The Supreme Court found that this purpose was objectively justified by a legitimate purpose, and that the means to achieve the purpose were appropriate and necessary.

The Supreme Court attached importance to the fact that the dress code only applied to employees having direct customer contact and that it was executed consistently vis-á-vis all religions.

Still not allowed to discriminate against due to religion

The above practice must not be confused with the possibility of direct discrimination due to religious faith. It is still contrary to the Anti-Discrimination Act to dismiss an employee due to religion. In the above cases, the employees were dismissed due to the fact that they refused to perform the work they had been employed to do according to the guidelines factually laid down by the employers.

The content of this Newsletter is not, and should not replace, legal advice.

Time to give notice of remaining holiday

According to the Holiday Act, notice concerning remaining holiday, meaning holiday in excess of the three weeks the employee is entitled to take during the summer period, must be given at minimum one month's notice. The holiday year ends on 30 April 2013, and if you are to give notice of the employee's remaining holiday, such notice must be given no later than 30 March deducting the number of days that have already been taken.

If you have a lot of employees who need to take remaining holiday, you should plan this as soon as possible in order to avoid that all the employees take holiday on the last days of April. 

New judgment: Operation manager's sexual harassment did not result in compensation

26 October 2017

Recently, the Eastern High Court ruled that a company was not obliged to pay compensation to an employee even though she had been sexually harassed by the department’s operations manager.

The European Court of Justice: Redundancies - when?

9 October 2017

In two recent cases, the European Court of Justice (ECJ) ruled that an employer should have consulted the employees’ organisations before giving notice of changes that resulted in collective redundancies.

The European Court of Justice: Public servant was entitled to be reinstated in trial position

9 October 2017

The European Court of Justice (ECJ) has assessed that a public servant employed in a trial position as head of department should have been offered the same or a similar position when returning from parental leave, even though the probationary period had expired.

New judgment from the European Court of Human Rights concerning companies’ monitoring of private communication

19 September 2017

The European Court of Human Rights recently ruled that employers must inform employees of the possibility of monitoring and to which extent.

Horten advances in new Chambers and Legal 500 rankings

19 April 2017

In 2017, the leading international ranking agencies, Legal 500 and Chambers, are once again ranking Horten among the best law firms in Denmark.

Conviction in bribery actions against Atea

24 March 2017

The Eastern High Court has delivered convictions in two bribery actions where Atea gave away iPhones, iPads and other IT equipment to two senior employees at the City of Copenhagen and DSB.

Horten advises Burmeister & Wain Scandinavian Contractor A/S on its acquisition of Burmeister & Wain Energy A/S in bankruptcy

8 February 2017

With effect from 6 January 2017, Burmeister & Wain Energy A/S (BWE) was acquired by Burmeister & Wain Scandinavian Contractor A/S (BWSC), which, despite the common name, has had different owners since the 90'ies.

Are you allowed as a governm¬ent official to say that the municipal chief executive's "core competence may not be the truth"?

30 January 2017

According to the Ombudsman, it was in accordance with the rules of government employees' freedom of speech when a municipal employee was given a warning for writing on his Facebook profile that the municipal chief executive was "a person whose core competence may not be the truth".

The Danish state is liable in damages for lack of replacement holiday

23 January 2017

The Supreme Court has ruled that the Danish state is liable in damages for not having made the Holiday Act consistent with the Working Time Directive fast enough in relation to sickness during holiday. However, the Supreme Court ruled in favour of the Danish state as the Supreme Court found that the state was not liable in damages at the time of the employee's sickness during the summer holiday 2010.

Global Leaders in Law appoints Horten as exclusive partner for Denmark

10 January 2017

Global Leaders in Law, the leading global general counsel forum based in London, and Horten has announced partnership. Appointed as a global bronze partner, Horten will sponsor the activities of Global Leaders in Law in 2017.

Trainee could be dismissed before training period started

8 September 2016

In a leading Supreme Court case, the court found that a company could terminate a training agreement before it had begun.

The ombudsman: Dismissal of upper secondary school teacher was contrary to government employees' freedom of speech

5 September 2016

The ombudsman found that it was "strongly criticisable" that Campus Bornholm had dismissed a teacher for having criticised the employer.

Compensation for violation of the principle of equal treatment of the Temp Act

5 September 2016

For the first time, the Supreme Court has ruled on a violation of the principle of equality of the Temp Act.

Compensation for wrongful publication of conviction

5 July 2016

Recently, the Eastern High Court ruled in a case where the housing association AAB had published information on a former voluntary cashier's criminal offenceson the Internet contrary to the Personal Data Act.

New act on e-cigarettes: Obligation to prepare a written policy concerning smoking at the work place

14 June 2016

A new act on e-cigarettes has come into force. The act implies that employers must prepare a written policy stipulating whether and, if so, where e-cigarettes are allowed.

Work permit in Denmark - many schemes will change

9 June 2016

From 10 June 2016, it is no longer possible to apply for a residence permit in Denmark through the Green Card scheme, and the minimum yearly salary required to obtain residence and work permit under the Pay Limit Scheme is abolished.

Legal to prohibit headscarves at the work place? A clarification is on its way from the European Court of Justice

8 June 2016

Recently, the Advocate-General proposed a decision in a case concerning a prohibition against religious symbols at the work place. The proposal may influence ECJ case law in a new direction.

New ratings from the international reference book Legal 500

4 May 2016

There are several good news for Horten in the new rankings, among these to new Tier 1-ratings in Media & entertainment and Telecoms.

Gift policy

3 May 2016

With a conviction of bribery, your company risks having to wave goodbye to public orders due to the rules of the Procurement Act.

The prohibition against discrimination overtrumps due process of law

3 May 2016

In a recent preliminary ruling, the European Court of Justice established that private persons and companies are subject to a prohibition against discrimination due to age based on both a principle of EU law as well as an obligation under a directive

The supreme court: Uncertain whether prohibition against indirect discrimination covers parents with disabled children

29 April 2016

The dismissal of a child-minder on leave to take care of her son suffering from Asperger syndrome was not contrary to the Anti-Discrimination Act. It is still uncertain whether a person covered by the protection criteria is protected against indirect discrimination.

The Western High Court ruled in favour of a former executive officer in text message case

27 April 2016

The Western High Court ruled in favour of a former executive officer, who had violated the provisions on mail secrecy by having read a crane driver's text messages on his work cell phone.

Time barring of industrial injury claims

26 April 2016

The Supreme Court has ruled that claims for compensation for permanent injury under the Act on Industrial Injuries are subject to the general 5-year limitation period - even if the industrial injury did not happen after 1 January 2004.

Dismissal of disabled employee was not contrary to the anti-dicrimination act

14 April 2016

The Supreme Court has ruled in a case as to whether an employee's sympathetic reflex dystrophy was long-term and therefore constituted a disablement within the meaning of the Anti-Discrimination Act.

Renunciation of collective agreement was lawful

11 April 2016

Recently, the Industrial Court accepted that Cimber renounced SAS' collective agreement for cabin crew in connection with transfer of aircraft and staff from SAS.

International women lawyers discuss the future of the legal profession

6 April 2016

Horten participates when 150 lawyers from all over the world meet in Berlin on 7-8 April under the headline "Law in a changing world – how women can contribute to innovation of the legal profession".

Ruling in the Kaltoft case: Employee's obesity was not considered a disablement

31 March 2016

Recently, the Court of Kolding ruled in a case whether an employee's severe obesity was a disablement. The court found that the employee's problems did not constitute a disablement within the meaning of the Anti-Discrimination Act.

Summary dismissal for purchase of mobile tickets for the employer's account

17 March 2016

The Supreme Court has ruled in a case where an employee purchased train tickets for private purposes from his work phone. According to the Supreme Court, the summary dismissal was justified.

Compensation for loss of capacity for work to person close to retirement age

15 March 2016

The Supreme Court has ruled that it is without any importance to the awarding of compensation for loss of capacity for work that the person is may receive state pension within a very short time.

Attorney was not covered by the salaried employess act

5 February 2016

The Eastern High Court surprisingly concluded that an attorney and partner at a law firm did not enjoy employee status and was therefore not covered by the Salaried Employees Act, the Holiday Act or the Contract of Employment Act.

Smoking police/policy - what is the employer allowed to do?

3 February 2016

Two new rulings clarify the scope of the employer's right to lay down smoking policies and impose sanctions in connection with violation of these policies.

Update Employment Law

3 September 2014

No age discrimination

19 December 2011