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‘Employer’s ban on visible display of religious markings no direct discrimination’

‘Employer’s ban on visible display of religious markings no direct discrimination’

On March 14, 2017, the Court of Justice ruled that an internal regulation by an employer, banning the visible display of any political, philosophical or religious markings, does not constitute direct discrimination.

Date:
30 Mar 2017
By:
Marieke ten Broeke

The reasons for this ruling were that a Muslim receptionist had informed her employer of her intention to wear an Islamic headscarf at work. In turn, her employer, G4S, had informed her that it would not accept her wearing such a headscarf since the visible display of any political philosophical or religious markings was in direct contradiction with the neutrality policy the company wishes to adhere to vis-à-vis its clients. When the employee then decided to nonetheless wear her headscarf, G4S added the rule to its work regulations stating that it is prohibited for employees to wear visible displays of their political, philosophical or religious convictions. Since the employee refused to remove her headscarf while performing her work activities, she was dismissed by G4S. This dismissal was brought before the Belgian court, after which the Belgian Court of Cassation petitioned the Court of Justice for a preliminary ruling on whether the G4S work regulations constitute direct discrimination.

In view of the fact that the G4S rule refers to the visible display of any political, philosophical and religious conviction and applies without distinction to all manifestations of such convictions, all employees are requested in a general manner to be dressed neutral. This rule therefore does not create unequal treatment based on religion or conviction. Therefore, the Court of Justice is of the opinion that this rule does not constitute direct discrimination.

This does not mean however that such a rule is automatically permissible. Such a rule can after all result in indirect discrimination, as a result of the fact that the ostensibly neutral obligation unduly affects certain employees who profess to or practice a certain religion or conviction . In such an instance a national court would have to rule as to whether the disparity may on neutral grounds be considered justified by reasons of a legitimate objective and if the means to accomplish this objective were proportionate and necessary.

The Court indicates that an employer’s wish to display itself in a neutral manner vis-à-vis its clients, is in principle legitimate. This would apply particularly to those employees that have direct contact with clients. An internal rule such as that at G4S can according to the Court be an appropriate way to safeguard a neutrality policy, provided the policy is coherently and systematically observed. It is up to the Belgian court to assess whether or not the rule in place at G4S meets these criteria.

In conclusion we may deduce the following from the order by the Court of Justice. An employer’s rule to prohibit employees from visibly displaying any markings of religion or other persuasion is permissible provided

  • the employer has a legitimate objective, such as safeguarding a neutrality policy with regard to client contact;
  • the neutrality policy is effectively and consistently implemented;
  • the rule is proportionate and necessary; the rule should not be applicable to more employees than strictly necessary to accomplish the objective.

It is therefore a requirement that a possible regulation within your company meets these criteria.

This article is intended to provide you with ad hoc information regarding new regulatory and case law developments and does not contain any legal advice. If you want to know more on the subject or need legal advice please contact us: info@bd-advocaten.nl