It is legal for employers to prohibit Muslim employees from wearing headscarves at the workplace, Advocate General (AG) Kokott has recently opined. Such a ban must, however, be the result of a general company policy whereby all employees are prohibited from wearing visible religious symbols in the workplace in order to ensure religious neutrality at the place of work.
EU law ensures that employees are not discriminated against on account of their religious beliefs but enjoy equal treatment at their workplace. Any form of discrimination on the basis of religious beliefs, be it direct or indirect, is prohibited.
In this particular case, a Muslim female was employed as a receptionist for a Belgian company which provides security and guarding services as well as reception services. After having worked there for three years, she insisted that she should be allowed to go to work in the future wearing an Islamic headscarf. As a result of this, she was dismissed by the company since the latter prohibited employees from wearing any visible religious, political and philosophical symbols.
The employee brought an action before the Belgian courts seeking damages from her employer. In the course of judicial proceedings, the Belgian Court of Cassation filed a preliminary reference before the Court of Justice of the European Union requesting guidance as to whether the measures adopted by the Belgian company were in breach of EU law.
Such a ban must be the result of a general company rule prohibiting visible political, philosophical and religious symbols
After examining the facts at hand, Advocate General Kokott opined that a company policy whereby a Muslim employee was banned from wearing an Islamic headscarf in the workplace cannot be considered as a form of direct discrimination on the basis of religion. However, such a ban must be the result of a general company rule prohibiting visible political, philosophical and religious symbols in the workplace and not the result of prejudices against one or more particular religions or against religious beliefs in general. The AG proceeded to point out that while the ban in question may be considered as a form of indirect discrimination since it has the effect of putting individuals of certain religions or beliefs at a disadvantage in comparison with others, it may nonetheless be justified. The justification brought forward by the company – namely, that such a policy was necessary in order to ensure religious and ideological neutrality at the workplace – is acceptable, the AG concluded.
The AG also emphasised that the principle of proportionality must, however, be observed at all times. Applying this principle to the facts at hand, the AG observed that the ban was in fact both necessary and proportionate in order to reach the company’s objective of religious neutrality. The company alleged that it was important for its employees to observe the policy in question, not only because of the variety of customers served by the company but also because of the fact that the services provided were characterised by face-to-face contact with external individuals and have a defining impact primarily on the public image of the company’s customers.
The AG noted that less intrusive but equally suitable alternatives for achieving the objective pursued by the company were not identified during the judicial proceedings. While an employee cannot ‘leave’ his sex, skin colour, ethnicity, sexual orientation, age or disability ‘at the door’ upon entering his employer’s premises, he may be expected to moderate the exercise of his religion at the workplace, the AG concluded.
The AG’s opinion is not binding on the CJEU and the latter may very well come to a different conclusion when delivering its ruling. Nonetheless, until then, this opinion provides some guidance to employers who may be faced with such dilemmas when employing persons of differentreligious beliefs.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.