Landmark ruling on religious headwear on its way

HR News
12 Aug 2016

two advocates general have issued an opinion in two cases concerning religious headwear within a short period of time. however, the two opinions differ.

Yvonne Frederiksen

Two advocates general have issued an opinion in two cases concerning religious headwear within a short period of time. However, the two opinions differ.

European employers are not allowed to discriminate against their employees based on religion, among ‎other things as a result of the Employment Equality Framework Directive. However, the EU Court has not ‎yet had an opportunity to consider the issue of whether and to what extent an employer's ban of ‎religious headwear in the workplace would constitute discrimination. In Denmark, the Supreme Court ‎ruled as early as in 2005 that a ban on headwear (including religious headwear) does not constitute ‎indirect discrimination so long as the ban is objectively and reasonably justified by the employer's wish ‎for a neutral appearance in relation to religious beliefs, political opinions, etc.‎

On 31 May 2016, Advocate General Kokott issued her opinion in a case from a Belgian court concerning ‎religious headwear. She reached the same result as the Danish Supreme Court back in 2005. ‎

However, in a recent opinion in a similar case from a French court, Advocate General Sharpston has ‎reached another conclusion. ‎

The French case concerns a Muslim design engineer who wore a headscarf. On recruitment, it was ‎emphasised that her freedom of religion would be respected, but she would not be allowed to wear the ‎headscarf when in contact with the company's customers.  Shortly into her employment, a customer ‎complained about her headscarf. When she refused to comply with the company's dress code and ‎remove her headscarf when in contact with customers, she was dismissed.‎

The employee believed that she had been discriminated based on religion and challenged the ‎dismissal. However, the French court found it necessary to refer some questions to the EU Court for a ‎preliminary ruling.‎

Direct or indirect discrimination?‎
As opposed to the Advocate General in the Belgian case, the Advocate General in the French case sees ‎this as a case of direct discrimination. The reason for her taking this view is that there was a dress code ‎in the company which banned religious signs, including religious apparel, in connection with customer ‎visits and that the employee was dismissed because of her wish to wear her Muslim scarf (hijab) in spite ‎of the dress code.‎

Thus, the facts of the case differed from those of the Belgian case, where the employer had issued a ‎clearly worded general dress code banning employees from wearing visible signs of their political, ‎philosophical and religious beliefs in the workplace. The company's dress code had been approved by ‎the works council and reflected the employer's wish for its employees to have a neutral appearance to ‎the external world in all respects.‎

The question was then if the specific derogations to the prohibition on direct discrimination under the ‎Employment Equality Framework Directive applied. However, the Advocate General concludes after ‎lengthy analysis that the scope for applying the derogations available is narrow and that none of the ‎derogations, including the derogation concerning a genuine and determining occupational requirement, ‎can apply in the case at hand.‎

In her comments, however, the Advocate General has decided to also analyse the law in a case of ‎indirect discrimination and thus, in reality, the Belgian case. As can be seen from the Advocate General's ‎opinion in the Belgian case, the issue to consider in such a situation is whether the employer's ‎apparently neutral dress code may be regarded as objectively justified by a legitimate aim and whether ‎the means of achieving that aim are appropriate and necessary.‎

In relation to the legitimate aim, Advocate General Sharpston notes that also the employer's business ‎interests, including a wish to communicate a certain image to its customers, may constitute a legitimate ‎aim.‎

In the analysis of whether the requirement of proportionality is met, however, Advocate General ‎Sharpston seems to be proposing a somewhat stricter test than that proposed by Advocate General ‎Kokott in her opinion in the Belgian case.‎

Norrbom Vinding will follow the two cases and report on the rulings, which are expected to be ‎delivered in late 2016.‎


Norrbom Vinding notes

  • that Advocate General Sharpston concludes that the French case constitutes direct discrimination based ‎on religion as the employer's dress code apparently was directed only at religious symbols and the ‎employee was dismissed with a specific reference to her wish to wear the Muslim headscarf;‎
  • that the case thus differs from the Belgian case, in which Advocate General Kokott issued her opinion ‎earlier this summer, where the employer had introduced a general dress code banning the employees ‎from wearing any visible signs of their political, philosophical and religious beliefs, which means that ‎the dress code was not a ban directed exclusively at religious symbols;‎
  • that, even so, there are many indications that the two Advocates General differ in their view of how to ‎balance the employer's business interests against the employee's wish to practice his or her religion in a ‎situation of indirect discrimination; and
  • that, accordingly, the final judgment of the EU Court in the two cases (the Belgian as well as the French) ‎will set a strong precedent for all EU member states and thus greatly affect the scope available for ‎employers to enforce a dress code which is based on objective and reasonable criteria.‎