The limits to the enforceability of religious and ideological neutrality company policies attending to the Judgment of the Court of Justice of the European Union of 14 March 2017

The judgment of the Court of Justice of the European Union dated 14 March 2017 (Case C-1571/2015) analyses the enforceability of company policies that forbid workers from using political, religious and ideological symbols, limiting the implementation of such polices to the cases in which legitimate purposes concur providing that no indirect discrimination takes place.

The ruling of the Court of Justice of the European Union (“CJUE“) resolves a reference for a preliminary ruling raised in a dispute arising in the Belgian employment jurisdiction, which questioned the compatibility of a corporate policy that forbid all employees from using visible signs of their political, philosophical or religious beliefs in the workplace, with the European Union law.

In the main proceedings which gave rise to the question referred to the CJUE, the dismissal of a female employee based on the breach of company policy that expressly banned the use of visible religious signs was declared fair. In the case at hand, the employee worked for a private company of “reception services” and decided, based on her Muslim faith, to start using an Islamic headscarf at her workplace.

The employee had rendered services as receptionist for three years before she decided to use the Islamic headscarf, when she was recruited there was an unwritten rule in the company banning the use of visible religious, political or philosophical signs. One month after the employee announced her intention to start using the headscarf; the employer reached an agreement with the workers’ council to implement a written policy containing such rule.

The question referred by the Belgian Court of Cassation inquiries whether such policy could be considered contrary to the principles of equality and non-discrimination on the grounds of religion, belief, disability, age or sexual orientation as provided in the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the “Directive 2000/78“).

The CJUE resolved the preliminary ruling, observing, first, that the Directive 2000/78 establishes a general framework against religious discrimination in the workplace, covering both the forum internum (the fact of having a belief) and the forum externum (the public manifestation of religious faith).

Subsequently, the CJUE proceeds to reject the existence of a situation of direct discrimination, since the policy discussed in the main proceedings treated the employees equally, since it was applied to all the employees and it fade the manifestation of any conviction.

However, the CJUE considers that there could be a situation of indirect discrimination. Thus, the CJUE states that the Belgian court which referred the question has to analyse the facts and determine whether there are elements to rule out a situation of indirect discrimination. According to the CJUE, the elements that should be used to discard an indirect discrimination when establishing these type of policies, are the following:

1. A legitimate aim justifying the desire to implement a neutral political, philosophical or religious policy in the treatment of clients has to exist, considering the freedom to conduct a business recognised in Article 16 the Charter of Fundamental Rights of the European Union.
2. The policy has to be appropriate to achieve neutrality, provided that that policy is genuinely pursued in a consistent and systematic manner.
3. There has to be a justification for the need of such policy in order to ensure the aim of neutrality pursued by the employer, which would take place if the restrictions apply only to the employees who can compromise the image of the company.

Therefore, the CJUE determines that the Belgian court has to consider the factual circumstances of the case in its analysis and, in particular, whether the employer could achieve the legitimate aim of maintaining neutrality with its clients without restricting the religious freedom of the employee. Specifically, the CJUE suggests to analyse whether there were alternatives to the dismissal, offer her a post not involving any visual contact with those customers.

Considering the above, it can be concluded that the implementation of policies that forbid the use of religious, political or philosophical symbols to the entire staff requires an analysis of the circumstances that justify their establishment and the potentially affected employees. All this in order to avoid a situation of indirect discrimination, prohibited by the Directive 2000/78 and Spanish regulations, which causes a particular disadvantage to those who profess a religion or have certain convictions.