The Court of Justice of the European Union has confirmed its previous case law, stating that companies can ban their employees from wearing any visible form of expression of political, philosophical or religious beliefs in the workplace. However, this prohibition must objectively be justified by the employer’s need to present a neutral image towards customers or to prevent social disputes. Moreover, limiting the prohibition to large-sized signs cannot be justified, as this would clearly be aimed at certain religions. Accordingly, in the WABE case there are certain nuances to the Achbita an Bougnaoui case law.
In the joined cases C-804/18 and C-341/19 (WABE and MH Müller Handels), two German Muslim employees had filed a complaint against their restrictive employers for prohibiting them from (and sanctioning them for) wearing an Islamic headscarf.
First, the Court of Justice has confirmed its previous case law in stating that the prohibition against wearing any visible form of expression of political, philosophical or religious beliefs in the workplace does not constitute a direct discrimination, if it is applied in a general manner, without distinction between any religious, political or philosophical belief.
Next, the Court stated that the case would be different if the prohibition would only relate to “large-sized” signs, as this would be likely to have a greater effect on people with beliefs that require the wearing of a large-sized sign, such as an Islamic head covering. Thus, as this criterion seems inextricably linked to one or more specific religions or beliefs, this limited prohibition means that some workers will be treated less favourably than others on the basis of their religion or belief, which would amount to direct discrimination, which cannot be justified.
A general ban on political, philosophical and religious signs could constitute an indirect distinction based on religion, but it can be justified by a legitimate aim, like the neutrality policy of the company. However, it is not sufficient for the employer to desire to be neutral towards the customers, but rather a genuine need is necessary to offer an objective justification. The relevant elements for identifying such a need are, inter alia, the rights and legitimate wishes of customers or users.
The Court gives the example in the education sector of parents who wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children. The sincerity of the need can be proven if the company can demonstrate that, “in the absence of such a policy of neutrality, its freedom to conduct a business would be undermined, in that, given the nature of its activities or the context in which they are carried out, it would suffer adverse consequences”.
Next, the ban should be appropriate to attain the legitimate aim. This means the ban should be applied in a consistent and systematic manner.
Lastly, the ban should remain proportionate, i.e. limited to what is strictly necessary, having regard to the actual scale and severity of the adverse consequences that the employer is seeking to avoid by adopting that prohibition.
Finally, the CJEU also points out that EU Member States are free to implement stricter rules to protect the freedom of religion, which would be more favourable for employees.
Key Action Points for Human Resources and In-house Counsel
- Make sure that the prohibition in your company relates to all visible signs of a religious, philosophical or political nature. Limited bans, or prohibitions that only relate to certain aspects, can be seen as a direct discrimination and are almost impossible to justify.
- Provide an objective justification for the ban, relating to the neutral image of the company or the social peace within the company, based on objective facts.
- If it is difficult to find an objective justification, consider dropping the prohibition, as it will likely constitute (indirect) discrimination.