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Can employers in Belgium and beyond ban the wearing of a headscarf?

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Authors
Inger Verhelst
Partner - Belgium
Claeys & Engels
Lauren
Lauren Daniels
Associate - Belgium
Claeys & Engels
Belgium
05.05.21
14
A Belgian employment court has ruled that a neutral dress code does not constitute direct discrimination, nor does it constitute indirect discrimination on the basis of religion.

On 12 October 2020, the Ghent Labour Court ruled on the question of whether a neutral dress code constitutes indirect discrimination, on the basis that Muslims would in practice be at a greater disadvantage than workers with another religion. The Labour Court decided that it did not constitute indirect discrimination. This judgement is now final and puts an end to this longlasting case.  

Preliminary ruling: no direct discrimination

A female worker employed as a receptionist asked to wear a headscarf during working hours after having worked four years without. The employer objected to this, given the company’s policy of neutrality, which prohibited workers from wearing outward signs of their religious, philosophical or political beliefs in the workplace. The worker was eventually dismissed because of her persistent refusal to comply with the dress code.  

The dismissed worker was of the opinion that the neutrality policy constituted discrimination on the basis of religion and claimed compensation equivalent to six months’ pay. The claim was declared unfounded by both the Labour Tribunal and the Labour Court of Antwerp, after which the dismissed worker appealed to the Court of Cassation, which then referred a question to the European Court of Justice for a preliminary ruling. In a decision of 14 March 2017, the European Court of Justice confirmed that a policy of neutrality does not constitute direct discrimination on the basis of religion, provided that the policy is not targeted at a particular religion and is applied consistently and systematically. The Court of Justice indicated however that there could have been indirect discrimination. 

No indirect distinction and therefore no indirect discrimination

The case was then referred to the Labour Court in Ghent for a ruling on the issue of indirect discrimination. Specifically, the former employee argued, together with Unia (the Belgian centre for equal opportunities and opposition to racism), that the neutrality policy disadvantaged Muslims as a group more than others, since Islam imposes a greater obligation to wear certain external signs than other religions. 

The Labour Court emphasised the Belgian principle of separation of church and state, from which it follows that it is not for the judiciary to compare different religions and to decide which external signs should or should not be considered compulsory within a certain religious or philosophical conviction. 

The Court decided that a believer’s desire to wear outward signs of his or her belief is not a protected criterion under the discrimination laws. This means that the policy of neutrality does not constitute an indirect distinction between workers and therefore, logically, that there can be no indirect discrimination. 

Employers’ free choice between neutrality and active pluralism

Although the Labour Court had already come to the conclusion that the neutrality policy did not constitute an indirect distinction, the Court also examined the hypothesis that there is indeed an indirect distinction. 

Even under these circumstances, the indirect distinction would not be discriminatory because the distinction is motivated by the employer’s desire to present itself neutrally in its relations with customers. The Labour Court confirmed that this is a legitimate aim, as had also been decided by the European Court of Justice. The choice between neutrality or active pluralism is a matter for the employer’s discretion and companies cannot therefore be obliged to adhere to active pluralism according to the Ghent Labour Court. 

The neutrality policy was considered appropriate by the Labour Court, as it was implemented in a consistent and systematic way. According to the Court, the policy is also necessary in order to achieve the objective of a neutral image. At the suggestion of the Court of Justice, the Labour Court finally examined whether the worker could have been offered an alternative function in which she would not have contact with customers. The Court found that the employer had sufficiently demonstrated that, at the time of the facts, there were no alternative functions available. According to the Court, the employer could in no way be expected to create a new function in the back office. 

Conclusion

A clear policy of neutrality applied consistently and systematically does not constitute direct discrimination or indirect discrimination on the basis of religion to the extent that it has the same impact on all believers and adherents of religious, philosophical or other convictions. 

Even if an indirect distinction could be demonstrated, an organisation’s desire to present itself neutrally to its customers constitutes a legitimate purpose and justification. 

As to whether a neutrality policy can also be justified for functions without any direct contact with customers, the Ghent Labour Court does not take a position, although it does believe that there is a lot to be said for such a justification. 

 

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