European Court of Justice: In a landmark ruling the Grand Chamber comprising of composed of K. Lenaerts, President, R. Silva de Lapuerta, Vice-President, A. Prechal, M. Vilaras, E. Regan, L. Bay Larsen, N. Piçarra and A. Kumin, Presidents of Chambers, T. von Danwitz, C. Toader, M. Safjan, F. Biltgen (Rapporteur), P.G. Xuereb, L.S. Rossi and I. Jarukaitis, JJ., held that prohibiting Islamic headscarf and any visible sign of political, ideological or religious beliefs does not constitute discrimination on the grounds of religion.
Factual Fulcrum
Two requests for a preliminary ruling were received by the Court from the Labour Court, Hamburg, Germany and the Federal Labour Court, Germany with regard to cases C‑804/18 and C‑341/19 respectively.
C‑804/18
IX was a special needs carer, employed by WABE which runs a large number of child day care centres in Germany, in which more than 600 employees work and which care for approximately 3500 children. IX decided to wear an Islamic headscarf which went contrary to WABE’s policy regarding ‘Instructions on observing the requirement of neutrality’. Those instructions state, inter alia, that WABE is ‘non-denominational and expressly welcomes religious and cultural diversity. In order to guarantee the children’s individual and free development with regard to religion, belief and politics, … employees are required to observe strictly the requirement of neutrality that applies in respect of parents, children and third parties. WABE pursues a policy of political, philosophical and religious neutrality in respect thereof’.
The ‘information sheet on the requirement of neutrality’ issued by WABE stated that the Christian cross, Islamic headscarf or Jewish kippah are not permitted as the children should not be influenced by the teachers with regard to a religion. The deliberate choice of religiously or philosophically determined clothing is contrary to the requirement of neutrality. Hence, IX was first temporarily suspended from service for wearing an Islamic headscarf. Later on, she was asked, in view of the requirement of neutrality, to perform her work without a headscarf in future. As IX again refused to remove the headscarf, she was sent home and temporarily suspended.
Case C‑341/19
One MJ, employed in a store operated by MH as a sales assistant and cashier had been transferred to another post allowing her to wear the headscarf as she had refused remove her headscarf in accordance with MH’s policy of neutrality. Later on, she was instructed to attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs and, following MJ’s refusal to comply with that request, she was sent home.
MJ brought an action before the national Courts seeking a declaration that that instruction was invalid and compensation for the damage suffered. In support of her action, MJ invoked her freedom of religion, claiming that the policy of neutrality sought by MH did not enjoy unconditional priority over the freedom of religion and must be subject to a proportionality test.
Both the Courts (Labour Court, Hamburg, Germany and the Federal Labour Court, Germany) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling.
Analysis by the Court
On prohibition to wear an Islamic headscarf at workplace
The Court answered that an internal rule of an undertaking, prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, does not constitute, with regard to workers who observe certain clothing rules based on religious precepts, direct discrimination on the grounds of religion or belief provided that that rule is applied in a general and undifferentiated way.
Noticing that WABE also required another employee wearing a religious cross to remove that sign, the Bench opined that prima facie the internal rule at issue in the main proceedings was applied to IX without any difference of treatment by comparison with any other person working for WABE, with the result that it could not be considered that IX suffered a difference of treatment directly based on her religious beliefs.
Political, ideological and religious neutrality of employer v. Religious and gender discrimination
Article 2(2)(b)(i) of Directive 2000/78 provides that such a difference of treatment is prohibited, unless the provision, criterion or practice from which it derives is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. However, the Bench clarified that the concept of a legitimate aim and the appropriate and necessary nature of the means taken to achieve it must be interpreted strictly. In that regard, the Bench held that,
As regards to condition relating to the existence of a legitimate aim, an employer’s desire to display, in relations with both public- and private-sector customers, a policy of political, philosophical or religious neutrality may be regarded as legitimate…(however) mere desire of an employer to pursue a policy of neutrality – while in itself a legitimate aim – is not sufficient, as such, to justify objectively a difference of treatment indirectly based on religion or belief.
Hence, the Bench answered that Article 2(2)(b) of Directive 2000/78 must be interpreted as meaning that a difference of treatment indirectly based on religion or belief, arising from an internal rule of an undertaking prohibiting workers from wearing any visible sign of political, philosophical or religious beliefs in the workplace, may be justified by the employer’s desire to pursue a policy of political, philosophical and religious neutrality with regard to its customers or users, provided,
- That policy meets a genuine need on the part of that employer, which it is for that employer to demonstrate, taking into consideration, inter alia, the legitimate wishes of those customers or users and the adverse consequences that that employer would suffer in the absence of that policy, given the nature of its activities and the context in which they are carried out;
- That difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which entails that that policy is pursued in a consistent and systematic manner; and,
- The prohibition in question is 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.
Does prohibiting visible sign of religious, political or other philosophical beliefs, and not only such signs as are prominent and large-sized is an indirect religious discrimination?
Opining that unequal treatment resulting from a rule or practice which is based on a criterion that is inextricably linked to a protected ground, i.e. religion or belief, must be regarded as being directly based on that ground, the Bench stated,
“Where the criterion of wearing conspicuous, large-sized signs of political, philosophical or religious beliefs is inextricably linked to one or more specific religions or beliefs, the prohibition imposed by an employer on its employees on wearing those signs on the basis of that criterion will mean that some workers will be treated less favourably than others on the basis of their religion or belief, and that direct discrimination, within the meaning of Article 2(2)(a) of Directive 2000/78, may therefore be established.”
Hence, in accordance with Article 2(2)(b)(i) of that directive, a difference of treatment would, if it were established that it in fact results in a particular disadvantage for persons adhering to a particular religion or belief, constitute indirect discrimination, unless it was objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary.
In the light of the above, the Bench stated that indirect discrimination on the grounds of religion or belief resulting from an internal rule of an undertaking prohibiting, at the workplace, the wearing of visible signs of political, philosophical or religious beliefs with the aim of ensuring a policy of neutrality within that undertaking can be justified only if that prohibition covers all visible forms of expression of political, philosophical or religious beliefs and,
“A prohibition which is limited to the wearing of conspicuous, large-sized signs of political, philosophical or religious beliefs is liable to constitute direct discrimination on the grounds of religion or belief, which cannot in any event be justified on the basis of that provision.”
National Provisions v. EU Directives
On the question as to whether, in examining the appropriateness of an internal rule of an undertaking it is necessary to weigh up the rights and freedoms at issue, in particular Articles 14 and 16 of the Charter, on the one hand, and Article 10 of the Charter, on the other, or whether that weighing should occur only when applying the internal rule in the individual case concerned, for example when an instruction is given to an employee or when an employee is dismissed, the Bench expressed that if it were to be concluded that the rights at issue arising from the Charter cannot be taken into consideration in the context of that examination, the question would then arise as to whether a national constitutional provision, such as Article 4(1) and (2) of the GG, protecting freedom of religion and belief, may be regarded as more favourable provisions within the meaning of Article 8(1) of Directive 2000/78.
Relying on the decision in Centraal Israëlitisch Consistorie van België v. Vlaamse Regering, C‑336/19, EU:C:2020:1031, the Bench stated that when several fundamental rights and principles enshrined in the Treaties are at issue, the principle of non-discrimination enshrined in Article 21 of the Charter and the right to freedom of thought, conscience and religion guaranteed in Article 10 of the Charter, on the one hand, and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions recognised in Article 14(3) of the Charter and the freedom to conduct a business recognised in Article 16 of the Charter, on the other hand, the assessment of observance of the principle of proportionality must be carried out in accordance with the need to reconcile the requirements of the protection of those various rights and principles at issue, striking a fair balance between them.
Hence, the Bench answered that it should be borne in mind that, as is apparent from its title, that directive establishes a general framework for equal treatment in employment and occupation, which leaves a margin of discretion to the Member States, taking into account the diversity of their approaches as regards the place accorded to religion and beliefs within their respective systems. The national provisions protecting freedom of thought, belief and religion, as a value to which modern democratic societies have attached great importance for many years, may be taken into account as provisions more favourable to the protection of the principle of equal treatment, within the meaning of Article 8(1) of Directive 2000/78, when examining what constitutes a difference of treatment based on religion or belief.[IX v. WABE eV, (C‑804/18), decided on 15-07-2021]
Kamini Sharma, Editorial Assistant has reported this brief.