Neutrality rejected! Religious discrimination and the European Court of Justice

Companies try to avoid tensions in their workplace by imposing neutrality rules whereby staff are prohibited from wearing any visible signs of religious, political or philosophical affiliation. In a world where terrorist acts are often associated with religious belief, employers may see this as an optimal way of avoiding conflicts or tensions in the workplace.

Questions are being raised, however, about the acceptability and legality of such company rules within the framework of the current European anti-discrimination directives and their implementing legislation in the different member states.

The principle of equal treatment with respect to religion or belief is included in the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. The purpose of the directive is to combat discrimination on the grounds of religion or belief, as well as other criteria such as disability, age and sexual orientation. Other directives specifically address equality on the basis of sex and racial or ethnic origin.

Both direct discrimination and indirect or impact discrimination are prohibited. Indirect religious discrimination is described as occurring where an apparently neutral criterion puts a person of a particular religion or belief at a disadvantage. This may, however, be justified if the goal of the rule that is imposed has a legitimate aim and the ways to meet that aim are appropriate and necessary.

Equality before the law and protection against discrimination constitutes a universal right, recognised by a large number of international legal instruments. We all agree that nobody should be refused a job because of having the “wrong” religion; nobody’s employment should be terminated for belonging to the Muslim, Christian or whatever other faith or belief.

Application of the equality principles in practice works out to be not that easy though.

First of all, the European Directive does not define what is a religion or belief. What is a religion? What is the difference between that and a belief? What makes a religion a religion? As the Directive itself neither defines the concepts nor limits the protection that is granted to a specific form of religion or belief, at some point in time the European Court of Justice (ECJ) will state that the terms as used in the Directive have a European meaning. This meaning will then have to be defined by the same Court. It will be interesting to read such a definition by the ECJ, one that is unlikely to please all citizens and likely to leave a large number of others quite upset. It will be clear that recognition by a national authority – for instance, with respect to funding, tax-exempt status, etc – cannot be a (decisive) criterion, as the definition is to be set at a European (rather than national) level. Will the group of religions be a closed group? Or can other forms of beliefs and value systems access the group to be recognised by the ECJ? Will the Court’s decisions be influenced by the popularity and widespread acceptance of a religion or belief? What is the difference between a sect and a religion – popularity? Is Scientology a religion? Or is it a sect or cult? Will all sects be protected under the EU Directive as either a religion or a belief?

On 25 July 1968, the UK Minister of Health stated in the House of Commons that the government was satisfied that Scientology was socially harmful. It considered Scientology a pseudo-philosophical cult. Its authoritarian principles and practice were deemed a potential menace to the personality and well-being of those so deluded as to become its followers. The government continued to state that there is no power under existing data privacy law to prohibit the practice of Scientology, but has concluded that it is so objectionable that it would be right to take all steps within their power to curb its growth.

On 9 May 1973 Ms Van Duyn, who was working as a secretary to the Church of Scientology in Amsterdam, was denied entry to the UK, where she wanted to take up a secretary job for the Church. Ms Van Duyn claimed that she was wrongfully denied entry to the UK, in violation of the principles of free movement. The ECJ did not agree (decision of 4 December 1974).

Does this mean that Scientology should be denied the status of a religion or belief, entitling its members, believers and adherents to equal protection under the law and protection against discrimination on the basis of religion or belief? For what it’s worth, Wikipedia lists a number of countries in which Scientology is recognised as a religion (for a variety of purposes). Do certain factions of a religion or belief lose the protected status of religion or belief, just because they preach intolerance or even violence? Because they represent only a small number of people?

Is Pastafarianism a religion or belief? Both? Or neither of the two? Pastafarians claim to believe in the Flying Spaghetti Monster as the invisible and undetectable creator of the universe. It is said that the Pastafarians’ idea of heaven is a beer volcano and a stripper factory; hell, on the other hand, is the same but with stale beer and strippers having sexually transmitted diseases. Pastafarians wear a colander as religious headgear, and in a few countries are allowed to wear them in passport pictures. Should Pastafarians be allowed to wear a colander at work, in the same way Christians should be allowed to wear a crucifix and Muslim women a headscarf?

On 14 March 2017 the ECJ had to deal with an employee’s right to wear a headscarf while working. The case concerns the services delivered by G4S, which has customers in both the public and private sectors. When Ms Achbita started working for G4S in 2003, the company had an unwritten rule for workers that no visible signs of their political, philosophical or religious beliefs could be worn in the workplace. In 2006 the worker informed the employer that she would start wearing an Islamic headscarf. After a period of absence, she returned to work wearing the headscarf. Two weeks later, the works council approved an amendment to the company work rules according to which “employees are prohibited, in the workplace, from wearing any visible signs of their political, philosophical or religious beliefs and/ or from engaging in any observance of such beliefs”. Ms Achbita’s employment contract was terminated on account of her continuing insistence that she wished, as a Muslim, to wear the Islamic headscarf at work. She received severance pay upon termination. The day after her termination, the amended company work rules came into force.

Ms Achbita took her case to the Antwerp courts. Both in the first instance and appeal courts rejected her claim that she was discriminated against on the basis of religion was rejected. The Belgian Supreme Court, before handing down its decision, addressed a preliminary question to the ECJ: does the prohibition of wearing an Islamic headscarf, arising from an internal rule of a private undertaking and imposing a blanket ban on the visible wearing of any political, philosophical or religious signs in the workplace, constitute direct discrimination prohibited by the Directive?

The Court first held, in line with the European Court of Human Rights, that the right to freedom of religion includes a right, in public or in private, to manifest one’s religion or belief, in worship, teaching practice or observance. The concept of religion should be interpreted as covering both the forum internum, that is in fact having a belief, and the forum externum, that is the manifestation of religious faith in public.

Since the company’s rule covers any manifestation of beliefs without distinction, the rule must be regarded as treating all workers in the same way by requiring them in a general and undifferentiated way to dress neutrally, which precludes the wearing of any such signs. Therefore the rule is not creating any direct discrimination on the basis of religion, so the ECJ held. Even though the preliminary question of the Belgian Supreme Court only dealt with the issue of direct discrimination, the ECJ went on to investigate whether any indirect discrimination was at stake.

The ECJ of course held that it is for the national court to determine whether there was any indirect discrimination if one religion was being put at a particular disadvantage. Even if this would be the case, the distinction could be objectively justified by a legitimate aim, and if the means of achieving that aim are appropriate and necessary.

The Court considered that the wish to demonstrate a policy of political, philosophical and religious neutrality to customers constitutes a legitimate aim. The wish to portray an image of neutrality relates, according to the ECJ, to the freedom to conduct a business. The aim was thus considered legitimate for customer-facing jobs. The Court did not pronounce itself with respect to non-customer-facing jobs; however, the fact that it restricted its answer to customer-facing jobs suggests that, for non-customer-facing jobs, neutrality would not be a legitimate aim.

It is quite strange that a potentially ill-motivated desire of a client not to have any show of Islamic headscarves at its service provider’s premises may be a legitimate aim for the company rendering its services on these premises; and, at the same time, the same desire for neutrality would most likely not be legitimate internally within said company, at least when dealing with non-client-facing jobs. Furthermore, it seems that one can impose a rule on a subcontractor or service provider while delivering services at one’s company, even though the same rule of neutrality could not be imposed on that company’s own workforce.

Self-evidently, the neutrality rule had to be applied genuinely and in a consistent and systematic manner. Furthermore, the question had to be answered whether there was a less restrictive alternative to the neutrality rule. Here again the issue came up that the rule would only be applied to workers who interact with customers. If that is the case, so the ECJ held, the prohibition must be considered strictly necessary for the purpose of achieving the aim pursued. A general rule of neutrality for all workers, including both those who are client-facing and those who are not, therefore seems to lead to religious discrimination as it is considered to be overreaching. This apparently means that overall neutrality within your own company can be considered of a lesser legal value than neutrality requested by a client.

The ECJ continued in an even more puzzling way by stating that G4S, before dismissing Ms Achbita, should have taken on an additional burden and considered whether it could offer her a post not involving any visual contact with customers, rather than dismissing her. The ECJ therefore introduces the idea of some kind of reasonable accommodation being required. The Directive itself certainly does not contain any duty to reasonably accommodate with respect to religious discrimination. It only does so with respect to handicapped discrimination. It is puzzling to read that the ECJ states that G4S should have looked at whether another internal job was available “without G4S being required to take on an additional burden”. What other forms of accommodation should an employer think of – especially if the protection against religious discrimination not only extends to having a certain belief, but also to its manifestation in public and in the workplace? What about, for example, changing working time regimes during Ramadan? While the EU Directive only requires accommodation with respect to handicapped workers, the ECJ should steer away from any form of accommodation in the area of religious discrimination law. While an employer may be expected to have to accept the manifestation of a belief, for instance by wearing a visible crucifix or headscarf, the employer’s obligation should not go beyond any passive form of acceptance. Accommodation, requiring the employer to undertake an active step, should not be part of its obligations under the EU Directive.