EurWORK European Observatory of Working Life

Discrimination on the grounds of religion or belief

Definition

Religion or belief discrimination refers to the differential treatment of individuals or groups based on their system of belief or worship.

Regulatory aspects

The Employment Equality Directive (Council Directive 2000/78/EC), which establishes a general framework for equal treatment in employment and occupation, prohibits both direct and indirect discrimination on the basis of religion or belief. Article 3 covers the conditions for access to employment, including ‘selection criteria and recruitment conditions’; ‘employment and working conditions, including dismissals and pay’; and ‘membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations’.

However, the directive allows for justified exceptions to the prohibition of unequal treatment. With respect to places of worship and other religious or belief-based organisations, Article 4(2) provides for a derogation from the general prohibition against religious discrimination where a ‘genuine, legitimate and justified occupational requirement’ exists. In addition, the directive does not affect the right of places of worship and other organisations, acting in accordance with national constitutions and laws, to require individuals working for them to act ‘in good faith’ and with loyalty to the organisation’s ethos.

Background and status

Legitimacy of employer neutrality rules

Discrimination on the grounds of religion has been at the core of many sensitive debates in a context where religion is perceived to be a source of conflict or a threat to social cohesion. A notable example of such debates concerns the rights of workers to express their religious beliefs in the workplace. Companies and public organisations often try to avoid tensions in their workplace by imposing ‘neutrality’ rules whereby staff are prohibited from wearing any visible signs of religious, political or philosophical affiliation. Questions have been raised, however, about the acceptability and legality of such company rules within the framework of the current European anti-discrimination directives and their corresponding legislation in the different Member States.

In March 2017, the Court of Justice of the European Union (CJEU) considered two cases relating to the right of employees to wear an Islamic headscarf at work – one in Belgium and one in France. Recalling Council Directive 2000/78/EC, the Court first held that, in line with the European Court of Human Rights, the right to freedom of religion includes a right to manifest one’s religion or belief, publicly or privately, in worship, teaching practice or observance. The concept of religion should be interpreted as covering both the ‘forum internum’, that is the fact of having a belief, and the ‘forum externum’, that is the manifestation of religious faith in public. On the basis of this definition, the wearing of the Islamic headscarf is thus a matter of religious freedom.

Direct and indirect discrimination

It then remains to be determined whether dismissal for wearing the Islamic headscarf constitutes direct or indirect discrimination. The CJEU distinguishes two situations according to whether or not the prohibition of the Islamic headscarf is based on an explicit internal company neutrality rule relating to religious, political or philosophical convictions. Where such a neutrality rule does not exist, the prohibition of manifesting religious beliefs (in this case, of wearing the Islamic headscarf) is direct discrimination. However, in cases where a neutrality clause exists, such clauses – despite being apparently neutral – could put employees that follow particular religions at a disadvantage compared with others, and might thus constitute indirect discrimination. In such cases, the distinction should be objectively justified by a legitimate aim, and only if the means of achieving that aim are appropriate and necessary.

In this respect, the CJEU admits the legitimacy of neutrality clauses only when they concern employees who will come into contact with the employer’s clients. A general neutrality rule applying to all employees – including both those who are client-facing and those who are not – is seen to be overreaching and therefore may lead to religious discrimination. The CJEU urges the national courts to exercise strict control over the proportionality of neutrality clauses. It has also introduced the requirement of reasonable accommodation in order to avoid dismissal in such situations; the national courts should thus ensure that instead of dismissing an employee, the employer is able to offer them a position that avoids ‘visual contact’ with its clients.

This CJEU ruling is consistent with a previous ruling from the European Court of Human Rights: Eweida vs United Kingdom in 2013. In this ruling, the Court recognised that a commercial company can legitimately impose a dress code on its employees in order to project a specific commercial image. Nevertheless, these interests – however legitimate – are not absolute and must always be considered alongside the individual’s right to manifest their religion. The Court thus found a violation of Article 9 (freedom of religion) of the European Convention of Human Rights in a case in which a private company had suspended an employee for refusing to conceal a crucifix, while certain symbols of other religions – such as a turban or hijab – had previously been authorised by the company.

 

Please note: the European industrial relations dictionary is updated annually. If errors are brought to our attention, we will try to correct them.

 

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