On Thursday 15 July, the European Court of Justice, sitting as a Grand Chamber, ruled (joined cases C-804/18 et C-341/19) that a ban on employees wearing visible signs of political, philosophical or religious conviction in the workplace can be justified by the employer’s need to present itself in a neutral manner to customers or to prevent social conflict. However, the employer must be able to prove that there is a genuine need, and the prohibition must be uniform, consistent, systematic and limited to what is strictly necessary in view of the scale of the adverse effects it is trying to avoid. Furthermore, in considering such cases, national courts should take into account the local context, the interests involved and any more favourable national provisions, limiting restrictions on freedom of thought, conscience or religion to what is strictly necessary.
The European judges were asked by the Hamburg Labour Court and the German Federal Labour Court to rule on two cases in which two female employees were refused permission to wear the Islamic headscarf in the workplace and were suspended and warned as a result. The two German courts asked the Court, with regard to the Directive on equal treatment in employment and occupation (2000/78/EC) : - whether an internal company rule prohibiting employees from wearing any visible sign of political, philosophical or religious belief in the workplace constitutes direct or indirect discrimination against them; - under what conditions can a difference in treatment resulting from such a rule be justified with regard to workers who observe certain standards of dress based on religious precepts; - what are the elements to be taken into consideration in order to examine the legitimacy of such a difference in treatment.
In response, the Court reiterated its case-law to the effect that a rule prohibiting the wearing of such symbols at work and requiring workers to dress neutrally does not constitute direct discrimination if it applies without distinction to all signs and manifestations of religious, philosophical or political beliefs - and not only to large ostentatious signs such as the Islamic headscarf, which would directly discriminate against the workers concerned, it specified, contrary to the opinion of the Advocate General (see EUROPE 12666/29), and to all workers, even if some of them who display such symbols for religious reasons may be inconvenienced by it.
In this respect, it notes that the difference in treatment that may result for these workers may be justified by the employer’s need to adopt a policy of neutrality in its relations with customers or users in order to meet their legitimate expectations (the case of parents wishing to see a neutral attitude on the part of staff in contact with pupils in schools is cited) or to prevent social conflicts (possibly linked to the display of signs or beliefs among staff).
In the event of a challenge to the ban, the employer must be able to provide evidence that, in the absence of a policy of neutrality, its freedom of enterprise would be restricted and that this would have adverse consequences for it, the Court said, adding that it must, however, limit the restrictions on staff to what is strictly necessary and that these must be proportionate to the seriousness of the consequences that it might itself suffer.
Finally, in order to assess the “appropriateness”, according to the Directive, of a difference in treatment resulting from this policy of neutrality in the workplace, the national courts may take into account national provisions that are more favourable than those of the Directive (possibly more demanding in terms of the justifications to be provided by the employer) and, in any event, they must take account of the specific context of each Member State, balance the different rights and interests of the parties involved in the case and limit the restrictions on the freedoms in question to what is strictly necessary, the Court states.
Link to the judgment: https://bit.ly/3B6mtlE (Original version in French by Francesco Gariazzo)