Filenews 15 July 2021
A particularly important decision was made today by the Court of Justice of the European Union as it held that employers can ask their workers not to wear a Muslim headscarf or other prominent symbol of political, philosophical or religious beliefs in their workplace.
The EU's highest court, in response to questions referred by the Hamburg Labour Disputes Tribunal and the Federal Labour Dispute Tribunal in Germany, ruled that this was not discriminatory but justified by the employer's need to present a neutral image vis-à-vis customers or to prevent social confrontations. However, that justification must meet the employer's real need and, in the context of reconciling the rights and interests at issue, national courts may take into account the specific context of each Member State and in particular the more favourable national provisions on the protection of religious freedom.
This is an important European court decision on a particularly sensitive issue, such as the Muslim headscarf, which concerns public opinion in many EU Member States.
The history of the scarf
IX and MJ, who work for German companies as a special educator and sales consultant and cashier, respectively, began wearing a Muslim headscarf at their workplace.
IX's employer, WABE, considering that the use of a Muslim headscarf was incompatible with its policy of philosophical, religious and political neutrality vis-à-vis parents, children and third parties, asked the employee to remove the headscarf and, following her refusal, temporarily suspended her employment relationship, sending her corresponding written observations. MJ's employer, MH Müller Handels GmbH ('MH'), after the worker refused to remove the headscarf at work, assigned her another job during which she could continue to wear it and then, after removing MJ from her duties, instructed her to appear at the workplace without ostentatious and large symbols of any policies , philosophical or religious beliefs.
IX brought an action before the Arbeitsgericht Hamburg (Hamburg Labour Court, Germany), seeking that WABE be required to withdraw from its personal file the written observations relating to the use of a Muslim headscarf. MJ brought an action before the national courts seeking recognition of the invalidity of the order given to it by MH, as well as compensation. Following MJ's vindication by the courts of the substance, MH appealed to the Bundesarbeitsgericht (Federal Labour Dispute Tribunal, Germany).
In that context, the two applicant courts decided to refer questions to the Court of Justice of the EU for a preliminary ruling on the interpretation of Directive 2000/78. They asked the Court to clarify, inter alia, whether an internal rule of an undertaking prohibiting workers from bearing any obvious symbol of policies, philosophical or religious beliefs in the workplace, recommends, in respect of workers who comply with specific dress rules on the basis of religious requirements, direct or indirect discrimination on grounds of religion or belief, under what conditions any difference in indirect treatment on grounds of religion or belief resulting from that rule may be justified and what are the elements to be taken into account in checking the appropriateness of that difference in treatment.
The Luxembourg Court recalls its case-law according to which such a rule does not directly discriminate, since it covers without distinction any manifestation of those beliefs and treats in the same way all employees of the undertaking by imposing on them, in general and without distinction, a neutral skin by excluding such symbols. The Court considers that that conclusion is not called into question by the fact that certain workers comply with religious requirements imposing a particular dress. Although a rule such as that may certainly be particularly unpleasant for those workers, that fact is irrelevant to the finding that that rule, which expresses a policy of neutrality of the undertaking, does not, in principle, introduce a difference in treatment between workers on the basis of a criterion which is unrelated to religion or belief.
In the present case, the rule at issue appeared to apply in general and indiscriminately, since the employer concerned asked an employee to remove the cross she was wearing around her neck and she complied. The Court concludes that, in those circumstances, a rule such as that at issue in the main proceedings does not constitute, in respect of workers who comply with specific dress rules on the basis of religious requirements, direct discrimination on grounds of religion or belief.
The Court of Justice of the EU also points out that, first of all, the employer's willingness to maintain a policy of philosophical, religious or political neutrality in relations with its customers may be a legitimate objective. However, the Court states that the mere will of the employer is not in itself sufficient to objectively justify the difference in treatment which is implicitly based on religion or belief, since, in order to accept that the justification is objective, there must be a genuine need of the employer. The crucial elements for determining such a need are in particular the rights and legitimate expectations of customers or recipients of services and, in particular, as regards education, the desire of parents to surround their children by persons who do not manifest their religion or beliefs when they come into contact with children.
In order to assess whether there is a real need, it is of particular importance whether the employer demonstrates that, in the absence of such a neutral attitude, his business freedom would be affected, in so far as, taking into account the nature of his activities or the context in which they form part, there would be adverse consequences.
