The use of religious symbols by a believer in the workplace has been the subject of attention of both the Court of Justice of the European Union and the European Court of Human Rights, which have tried to balance two opposing requirements: on the one hand, the need to safeguard religious freedom; on the other, the need to respect the freedom of business in the organization of corporate policies.

 

The European Court of Human Rights has ruled numerous times about religious symbols, and among the most prominent rulings are the 2013 cases Eweida v. United Kingdom and Chaplin v. United Kingdom. In both cases, the Court ruled that the use of religiously connoted clothing and religious symbols is one of the manifestations of religious belief protected by Article 9 ECHR. Therefore, restrictions on their use can only result from the law that is 'proportionate and necessary' to the aims pursued or that has as its purpose the safeguarding of public order. In Eweida v. United Kingdom, a British Airways ground hostess was released from work with the suspension of pay because she wore, along with her official uniform, a necklace with a crucifix, violating the company's policy of neutrality. The Strasbourg judges affirmed that the display of the cross falls within the manifestation of religious freedom and constitutes a fundamental right of the individual, both because a democratic society is founded on tolerance and the support of pluralism and diversity, and because of the interest - on the part of those who have elevated religion to an essential principle of their lives - in communicating their convictions to others. In the second case, Mrs. Chaplin, a nurse in a British hospital, was banned from wearing the cross necklace she had worn for years because of a change in uniform. The hospital's ban was justified, by the Strasbourg judges, on the grounds of health needs, considering that any type of jewelry could cause injury to patients, or infect them if it met damaged tissue.

On this subject, reference can also be made to the 2014 S.A.S. v. France judgment. On that occasion, the European Court of Human Rights held that the prohibition established by French law on wearing any garment that completely covers the face was compatible with Article 9 ECHR. The European Court held that the French law did not violate the Convention, affirming a proportionate use of its margin of appreciation in regulating sensitive matters, and arguing that the legislative intervention found its justification in the guarantee of respect for democratic values, among which the ECHR includes the requirements of vivre ensemble referred to in paras. 2 of Art. 8 ff. of the Convention. The Court finally reiterated this position also in the 2017 Belcacemi and Oussar v. Belgium judgment, affirming the conformity of the prohibition with ECHR standards.

 

After years of silence, the Court of Justice of the European Union has also ruled on the issue. The cases brought before the judges focused on the lawfulness of an employer's ban on the wearing of clothing or accessories manifesting a given religious affiliation in the workplace. 

In the first cases in chronological order - which can be identified in the two "twin" cases Achbita and Bougnaoui v. Micropole SA - the question for a preliminary ruling centered on the compatibility of the measure taken by the employer with the prohibition of discrimination based on religion or belief laid down in Directive 2000/78/EC.  The Achbita case concerned the dismissal, by the Belgian company G4S Secure Solution NV operating in the security sector, of Samira Achbita, an employee of Muslim faith who worked as a receptionist. In particular, she had refused to obey the employer's requirement not to wear a headscarf while working. The company had claimed breach of contract due to a violation of a company rule that, at the time of the facts, was unwritten. The Court of Justice ruled in this case that "a prohibition on wearing an Islamic headscarf, resulting from an internal rule of a private company prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination on grounds of religion or belief within the meaning of Directive 2000/78/EC".

In the sister case Bougnaoui v. Micropole SA, a company operating in France - Micropole Univers SA, which provided services in the field of management engineering - had dismissed Ms. Bougnaoui because of her refusal to remove her Islamic headscarf at work. The company had in fact established a general prohibition on the use of religious symbols in the workplace, even though the dismissal was specifically motivated by a client's complaints about the employee's use of the veil. In particular, the Court's reasoning starts from the assessment of the difference in treatment indirectly based on the employee's religion or belief within the meaning of Article 2(2)(b) of Directive 78/2000. Thus, the difference in treatment does not constitute indirect discrimination if it is objectively justified by a legitimate aim pursued by the undertaking adopting a policy of neutrality towards its customers. Based on these assessments, the Court ruled out that the mere desire of customers not to be served by a female employee wearing an Islamic headscarf could be relevant, because according to Article 4(1) of Directive 78/2000, and in accordance with the Court's constant case law, it is the notion of an essential and determining requirement for the performance of the work activity that would justify the difference in treatment. The Courts of the Union, therefore, reach the conclusion that the wish of the customers of a company that has no internal rule prohibiting the wearing of the Islamic headscarf is not relevant, and does not rise to the level of an essential and determining requirement for the performance of the work activity. However, it is up to the national court to ascertain in concrete terms whether membership in a religious culture affects the professional services required of the employee.

The Court of Justice of the European Union returns to the subject of religious symbols again in 2021 thanks to two different references for a preliminary ruling by two German courts: Judgment of the Court (Grand Chamber) of 15 July 2021 (reference for a preliminary ruling from the Arbeitsgericht Hamburg, Bundesarbeitsgericht - Germany) - IX v WABE eV (C-804/18), and MH Müller Handels GmbH v MJ (C-341/19) (Joined Cases C-804/18 and C-341/19). The cases concerned two women of the Muslim religion, a female teacher, and a female salesperson, who had been prohibited by their employer from wearing headscarves while on duty and had therefore been suspended from their jobs. Asked for a preliminary ruling as to whether this constituted direct discrimination within the meaning of European law, the Court of Justice clarified that when the prohibition applies to all employees without distinction, there can be no question of discrimination, especially when the prohibition itself is linked to the employer's need to maintain political and religious neutrality, also in view of the activity carried out. However, such a prohibition must be limited to what is strictly necessary having regard to the actual scope and gravity of the adverse consequences which the employer intends to avoid by means of such a prohibition.

The European Court of Justice is in continuity with previous case law in its judgment of 13 October 2022, C-344/20, in which it reiterated that an undertaking that prohibits the wearing of any visible type of religious, philosophical, or spiritual symbol on its premises does not commit discrimination, provided that the rule applies to every denomination; on the contrary, it would amount to unequal treatment in conflict with the provisions of Directive 2000/78. In the present case, a worker of Muslim faith had brought an action against a company that had rejected her application for a traineeship because, during the interview, she had stated that she would refuse to remove her headscarf. However, the company's internal rule was clear in stating that it was forbidden to wear any kind of garment or visible sign of one's religious faith on the premises. The Court, on this point, states that such a prohibition does not constitute direct discrimination against employees based on religious affiliation if that prohibition is applied across the board.

In conclusion, the prohibition of displaying religious symbols as a manifestation of one's religious affiliation in the workplace does not automatically constitute discrimination according to supranational case law, since the different values at stake must be considered. It appears to be of primary importance that the prohibition affects all religions and all persons indiscriminately. The European judges also specify that the policy of neutrality must be pursued in a consistent and systematic manner and must cover any visible form of expression of political, philosophical, and religious convictions.

 

(Focus by Alessandro Cupri)

 

Essential bibliography:

 

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C. Cianitto, Le minoranze religiose in Italia: nuovi problemi (?), in Stato, Chiese e pluralismo confessionale (telematic Review), n. 13, 2021

 

N. Colaianni, Il velo delle donne musulmane tra libertà di religione e libertà di impresa. Prime osservazioni alla sentenza della Corte di Giustizia sul divieto di indossare il velo sul luogo di lavoro, in Stato, Chiese e pluralismo confessionale (telematic Review), n. 11, 2017

 

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