8 June 2016

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

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.

The case concerned a woman working as a receptionist at the Belgium security and surveillance company G4S Secure Solution. After having worked there for three years, she declared that, in the future, she would wear a religious headscarf at work. This was contrary to the company's general prohibition against wear of religious, political or philosophical symbols at work, and the woman was therefore dismissed as she refused to remove the headscarf.

The Advocate-General: Religious symbols may be deposited in the wardrobe

In the proposal, the Advocate-General stated that the employee had not been subject to direct discrimination as the company had a general prohibition against wear of visible religious symbols. However, the employee was subject to indirect discrimination due to religion.

However, indirect discrimination may be legal if the prohibition is justified by a legitimate purpose to pursue a policy on religious neutrality at the workplace. According to the Advocate-General, it is a commercially legitimate purpose to pursue a policy on religious neutrality.

In relation to the principle of proportionality, the Advocate-General stated that the company's prohibition against wear of religious symbols was not an excessive encroachment on the employee's right to practice her religion. In this connection, the Advocate-General stated:

"As an employee cannot leave his/her gender, colour, ethnic origin, sexual orientation, age or disablement "in the wardrobe" when entering the employer's premises, you could demand that the employer takes up a cautious attitude to the employee's practice of his/her religion [...]"

The Advocate-General thereby seems to establish a difference between the protected criteria that are "unchangeable" and the criteria that the employee may tone down or hide.

According to the Advocate-General, it is also important how eye-catching the symbol is, the employee's position and tasks and whether there is a duty to be neutral or to practice a specific religion. Finally, the Advocate-General stated that, in member states where the constitution lays down that the church and the state are separated, the right to wear religious symbols may be subject to more strict limitations than in member states where state and religion are not separated.

In line with Danish case law

Previously, similar problems were heard by the European Court of Human Rights and the Supreme Court.

In a recent ruling from the European Court of Human Rights, the court stated that a Christian woman working at British Airways' check-in was entitled to wear a visible cross as it was discrete. The restriction in the woman's freedom of religion was therefore contrary to human rights.

The case law of the Danish Supreme Court seems to be in accordance with the Advocate-General's proposal. In the so-called Føtex case from 2005, which is very similar to the Belgian case, the Supreme Court found that it was not contrary to the Anti-Discrimination Act or human rights to dismiss an employee who insisted on wearing a Muslim headscarf contrary to the company's general dress code, which applied to and was consistently enforced vis-á-vis all employees.

Discrimination due to religion and restrictions in the freedom of religion are only legal under human rights and the EU principle on prohibition against discrimination if the purpose is legitimate and the measures are proportionate.
    
It is important to note that the Advocate-General's proposal is not binding on the European Court of Justice, and the court may come to another result.

We will, of course, follow up on the matter, as soon as the ruling is available.

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