Religious freedom in the workplace

Friday 29 October 2021

Eva-Maria Schwarzer
Freshfields Bruckhaus Deringer, Hamburg
​​​​​​​eva-maria.schwarzer@freshfields.com

Laura Llangozi
Freshfields Bruckhaus Deringer, Brussels
​​​​​​​laura.llangozi@freshfields.com  

Many employers are seeking to become more diverse to gather a wider range of perspectives (and therefore improve productivity) and contribute to social justice. However, (bans on) religious symbols in the workplace regularly find their way into the courtroom. For example, the Court of Justice of the European Union (CJEU) recently ruled on whether a ban on Islamic headscarves discriminated against female employees. Similarly, the European Court of Human Rights (ECtHR) regularly addresses the right of employers to impose certain obligations on their employees that affect how the employees practise their religion or beliefs. The questions that the ECtHR and the CJEU have to deal with are usually of different nature: whereas the ECtHR has to face questions with regard to the employee’s right of religious freedom, the CJEU has to decide on the equal treatment of the employees.

Court of Justice of the European Union

In a recent decision, the CJEU confirmed existing jurisprudence by ruling that a prohibition on workers wearing any visible sign of political, philosophical or religious belief in the workplace does not constitute direct religion or belief discrimination under the EU Equal Treatment Framework Directive (the ‘Directive’), but only if the prohibition applies in a general and undifferentiated way.

This decision follows separate requests for preliminary rulings by two German labour courts, which asked the CJEU to clarify:

  • whether banning employees from wearing Islamic headscarves constituted direct religion or belief discrimination under the Directive; and
  • what degree of indirect discrimination could be justified.

Case 1 – justifying indirect discrimination

In the first case (C‑804/18), a Muslim employee had been wearing a headscarf at her workplace (a child day-care centre) since 2016. In 2018 the employer established a policy of political, philosophical and religious neutrality, which effectively banned employees from wearing any visible signs of religious belief to parents, children and third parties in the workplace. The employee refused to remove the headscarf. The employer suspended the employee twice and gave her two warnings. The employee filed a suit to remove the warnings from her personal file.

Under German law, an employee is generally allowed to wear religious, philosophical or political symbols at work. The employer may only restrict the right if there are objective reasons for doing so, for example, safety requirements, and employees are treated equally. (In this case, the employer had also asked a female employee to remove a cross that she wore around her neck.)

The CJEU found that the employer’s policy did not constitute direct discrimination – as long as it did not distinguish between beliefs and treated all employees equally.

It also considered whether the employer could justify the rule’s indirect discriminatory effect on the grounds that it was a response to the legitimate wishes of customers and users.

The CJEU held that the mere desire of the employer to have the policy is not enough. The employer must also show that it has a genuine need for the policy. For this to occur, it can consider the rights and legitimate wishes of customers or users, such as parents who:

  • have a right to ensure their children were educated in accordance with their religious, philosophical and political beliefs; or
  • wish to have their children supervised by persons who do not manifest their religion or belief when they are in contact with the children.

The CJEU also mentioned two conditions for objective justification, which are that the rule must be:

  • appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, which means that the policy must be pursued in a consistent and systematic manner; and
  • limited to what is strictly necessary.

Case 2 – ‘large-sized signs’ of belief

The second case (C‑341/19) concerned a Muslim sales assistant and cashier in a store, who refused to comply with the employer’s request to remove her headscarf and was told to attend her workplace without ‘conspicuous, large-sized signs’ of any political, philosophical or religious beliefs. The employee believed that the employer’s instruction was invalid and sought damages, arguing that the policy of neutrality does not enjoy unconditional priority over the freedom of religion and must be subject to a proportionality test.

The CJEU considered whether a ban on visible signs of political, philosophical or religious beliefs in the workplace can be justified only if the ban covers all such visible forms of expression or whether it is sufficient that the ban is limited to conspicuous, large-sized signs.

It ruled that the latter could constitute direct discrimination on the grounds of religion or belief, given that it would have a greater effect on people with religious, philosophical or non-denominational beliefs that require the wearing of a large-sized sign, such as a head covering. The CJEU held that, in this case, indirect discrimination could be justified if the ban extended to all visible forms of expression of political, philosophical or religious beliefs.

European Court of Human Rights

Article 9 of the European Convention on Human Rights (ECHR) recognises freedom of thought, conscience and religion as a human right, including the right to manifest one’s religion or beliefs. As such, extensive jurisprudence of ECtHR derives from Article 9 of the ECHR.

The ECtHR has confirmed that an employer whose ethos is based on a religious or philosophical belief may impose certain loyalty obligations on its employees. However, the ECtHR has said that such an employer’s right to dismiss depended on the nature of the employee’s job. Further, the ECtHR has suggested that it is down to national courts to analyse (on a case-by-case basis) the obligation of loyalty that employees should have towards employers with a religious ethos.

In Schüth v Germany, the employer (the Catholic Church) dismissed the employee (an organist and choirmaster) because he had left his wife and had a child with a new partner. However, the ECtHR found that the employer could not simply dismiss the employee because he had broken a contractual pledge of loyalty and contradicted the employer’s ethos. The employer instead has to show there was good reason why the employee – regardless of his situation – was not able to fulfil his duties. In addition, the ECtHR observed that a long-time employee of a religious organisation would have limited job opportunities if the organisation dismissed them. Under these circumstances, the autonomy of the employer was not absolute and had to be analysed vis-à-vis the aforementioned requirements.

In contrast, the ECtHR has continuously suggested to national courts to analyse (case by case) the obligation of loyalty that employees of religious organisations are expected to have when they work for such an organisation. For example in Fernández Martínez v Spain, ECtHR ruled that it was not unreasonable for the employer (the Spanish state) to expect that an employee (a teacher of Catholic religion and ethics) had some degree of loyalty by sharing the same values as the ones that he taught. If he did not, it would undermine the credibility of the employer, and the school.

Conclusion ​​​​​​​

The jurisprudence of two main courts of Europe suggests that an employer does not have complete autonomy when deciding whether to dismiss an employee for contravening its religious values and that national courts are responsible for analysing the competing interests of employee and employer.